Chapter 9 – Complaint and Referral Processing

I. Safety and Health Complaints and Referrals.

A. Definitions.

1. Complaint.
   Notice of an alleged safety or health hazard (over which HIOSH has jurisdiction), or a violation of the Law. There are two types; formal and non-formal.
   1. Formal Complaint.
      Complaint made by a current employee or a representative of employees that meets all of the following requirements:
      • Asserts that an imminent danger, a violation of the Law, or a violation of a HIOSH standard exposes employees to a potential physical or health harm in the workplace;
      • Is reduced to writing or submitted on an OSHA-7 form; and
      • Is signed by at least one current employee or employee representative.
   2. Non-formal Complaint.
      Any complaint alleging safety or health violations that does not meet all of the requirements of a formal complaint identified above and does not come from one of the sources identified under the definition of Referral, below.
2. Inspection.
   An onsite examination of an employer’s worksite conducted by a HIOSH compliance officer, initiated as the result of a complaint or referral, and meeting at least one of the criteria identified in Section C, Criteria Warranting an Inspection, below.
3. Inquiry.
   A process conducted in response to a complaint or a referral that does not meet one of the identified inspection criteria as listed in Section C. It does not involve an onsite inspection of the work-place, but rather the employer is notified of the alleged hazard(s) or violation(s) by telephone, fax, email, or by letter if necessary. The employer is then requested to provide a response, and HIOSH will notify the complainant of that response via appropriate means.
4. Electronic Complaint.
   A complaint submitted via OSHA’s public website, or to HIOSH’s e-mail. All complaints submitted via OSHA’s public website and referred to HIOSH are initially considered non-formal. See Chapter 9 Section I.E.5., to determine when electronic complaints are to be considered formal.
5. Permanently Disabling Injury or Illness.
   An injury or illness that has resulted in permanent disability or an illness that is chronic or irreversible. Permanently disabling injuries or illnesses include, but are not limited to amputation, blindness, a standard threshold shift in hearing, lead or mercury poisoning, paralysis or third-degree burns.
6. Referral.
   An allegation of a potential workplace hazard or violation received from one of the sources listed below.
   1. CSHO referral – information based on the direct observation of a CSHO.
   2. Safety and health agency referral – from sources including, but not limited to: NIOSH, state programs, consultation, and state or local health departments, as well as safety and/or health professionals in Federal agencies.
   3. Discrimination complaint referral – made by a whistleblower investigator when an employee alleges that he or she was retaliated against for complaining about safety or health conditions in the workplace, refusing to do an allegedly imminently dangerous task, or engaging in other activities related to occupational safety or health.
   4. Other government agency referral – made by other Federal, State, or local government agencies or their employees, including local police and fire departments.
   5. Media report – either news items reported in the media or information reported directly to HIOSH by a media source.
   6. Employer report – of accidents other than fatalities and catastrophes.
7. Representative of Employees.
   Any of the following:
   • An authorized representative of the employee bargaining unit, such as a certified or recognized labor organization.
   • An attorney acting for an employee.
   • Any other person acting in a bona fide representative capacity, including, but not limited to, members of the clergy, social workers, spouses and other family members, and government officials or nonprofit groups and organizations acting upon specific complaints and injuries from individuals who are employees.
     
     NOTE: The representative capacity of the person filing complaints on behalf of another should be ascertained unless it is already clear. In general, the affected employee should have requested, or at least approved, the filing of the complaint on his or her behalf.

B. Classifying as a Complaint or a Referral.

Whether the information received is classified as a complaint or a referral, an inspection of a workplace is normally warranted if at least one of the conditions in Section C, Criteria Warranting an Inspection is met.

C. Criteria Warranting an Inspection.

An inspection is normally warranted if at least one of the conditions below is met (but see also Paragraph I.D. of this chapter, Scheduling an Inspection of an Employer in an Exempt Industry):

1. A valid formal complaint is submitted. Specifically, the complaint must be reduced to writing or submitted on a Complaint (OSHA-7), be signed by a current employee or representative of employees, and state the reason for the inspection request with reasonable particularity. Additionally, there must be reasonable grounds to believe either that a violation of the Law or HIOSH standard that potentially exposes employees to physical harm exists, or that an imminent danger of death or serious injury exists, as provided in Section 396-8(b), HRS.
2. The information received in a signed, written complaint from a current employee or employee representative that alleges a record-keeping deficiency that indicates the existence of a potentially serious safety or health violation.
3. The information alleges that a permanently disabling injury or illness has occurred as a result of the complained of hazard(s), and there is reason to believe that the hazard or related hazards still exist.
4. The information alleges that an imminent danger situation exists.
5. The information concerns an establishment and an alleged hazard covered by a local, regional, or national emphasis program, or the Inspection Scheduling System Plan.
6. The employer fails to provide an adequate response to an inquiry, or the individual who provided the original information provides further evidence that the employer’s response is false or does not adequately address the hazard(s). The evidence must be descriptive of current, on-going or recurring hazardous conditions.
7. The establishment that is the subject of the information has a history of egregious, willful, failure-to-abate, or repeated citations within HIOSH’s jurisdiction during the past three years, or is an establishment or related establishment in the Severe Violators Enforcement Program (SVEP). However, if the employer has previously submitted adequate documentation for these violations demonstrating that they were corrected and that programs have been implemented to prevent a recurrence of hazards, the Branch Manager will normally determine that an inspection is not necessary.
8. A whistleblower investigator or OSHA Regional Supervisory Investigator requests that an inspection be conducted in response to an employee’s allegation that the employee was discriminated against for complaining about safety or health conditions in the workplace, refusing to perform an allegedly dangerous job or task, or engaging in other activities related to occupational safety or health.
9. If an inspection is scheduled or has begun at an establishment and a complaint or referral that would normally be handled via inquiry is received, that complaint or referral may, at the Branch Manager’s discretion, be incorporated into the scheduled or ongoing inspection. If such a complaint is formal, the complainant must receive a written response addressing the complaint items.
10. If the information gives reasonable grounds to believe that an employee under 18 years of age is exposed to a serious violation of a safety or health standard or a serious hazard, an onsite inspection will be initiated if the information relates to construction, manufacturing, agriculture, or other industries as determined by the Branch Manager. Limitations in funding of HIOSH’s activities in agriculture by Appropriations Act provisions will be observed. See CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act, dated May 28, 1998, and adopted by HIOSH on July 10, 1998. A referral to the Wage Standards Division (WSD) should also be initiated.
    
    NOTE: The information does not need to allege that a child labor law has been violated.

D. Scheduling an Inspection of an Employer in an Exempt Industry.

In order to charge an inspection of an employer in an exempt industry classification as specified by Appropriations Act provisions to normal inspection activity coding; i.e., 50/50 Fed/State:

NOTE: See CPL 02-00-051, Enforcement Exemptions and Limitations under the Appropriations Act, dated May 28, 1998, and adopted by HIOSH on July 10, 1998.

1. The information must come directly from a current employee; OR
2. It must be determined and documented in the case file that the information came from a representative of the employee (see Paragraph I.A.7. of this chapter, Representative of Employees), with the employee’s knowledge of the representative’s intended action.

E. Electronic Complaints Received via the OSHA Public Website or the HIOSH email.

1. Electronic complaints submitted via the OSHA public website are automatically forwarded via email to the designed Area office in the appropriate state. That Office then forwards the electronic complaints to the appropriate State office e-mail.
2. For HIOSH, that e-mail box is monitored by the division secretary on a daily basis, and referred to the appropriate branch for action.
3. The Branch Manager is then responsible to evaluate the complaint for appropriate action, i.e., one of the criteria listed in C. Criteria Warranting an Inspection above.
   1. If the Branch Manager determines that the complaint is obviously not within HIOSH jurisdiction, e.g., another agency, an appropriate referral should be made’
   2. If further information is necessary, the Branch Manager should make every effort to contact the complainant via e-mail or telephone. If immediate contact could not be made via telephone or e-mail, a reasonable period, e.g., five (5) calendar days should be set for a response.
   3. If no timely response is received, the appropriate notation should be made on the complaint log, and no further action taken.
4. If the information indicates that employees may be exposed to a potential safety and/or health hazard, a Complaint (OSHA-7) is to be completed. Enter the following code in the Optional Information field: N-11-LOGXXXXXX
   • Where N-11 indicates that the complaint was filed electronically; and
   • The digits following LOG are the unique complaint ID/log numbers assigned to the electronic complaint when processed by the Salt Lake Technical Center. The log number may vary and does not have to be exactly six digits. In entering the code, there is no space between the word LOG and the digits that follow.
5. Electronic complaints where a current employee has provided their name and checked the “This constitutes my electronic signature” box shall be considered as a formal complaint and processed accordingly.
6. If the electronic complaint is not signed, the Branch Manager must actively follow up on information received electronically in order to provide the employee with the opportunity to formalize the complaint. The employee can send or fax a signed copy of the information, request that an OSHA-7 form be sent, or sign the information in person at the division Office. Normally a complainant has five working days to formalize an electronic complaint.
7. All complaint-related material received electronically should be printed and date stamped with the date the material was submitted and received. When these dates are not the same, the Branch Manager will determine the appropriate date for the incoming material.

F. Information Received by Telephone.

1. While speaking with the caller, HIOSH staff will attempt to obtain the following information:
   1. Whether the caller is a current employee or an employee representative.
   2. The exact nature of the alleged hazard(s) and the basis of the caller’s knowledge. The individual receiving the information must determine, to the extent possible, whether the information received describes an apparent violation of HIOSH standards or the HIOSH Law.
   3. The employer’s name, address, email address, telephone and fax numbers, as well as the name of a contact person at the worksite.
   4. The name, address, telephone number, and email address of any union and/or employee representative at the worksite.
2. As appropriate, HIOSH will provide the caller with the following information:
   1. Describe the complaint process, and if appropriate, the concepts of “inquiry” and “inspection,” as well as the relative advantages of each.
   2. If the caller is a current employee or a representative of employees, explain the distinction between a formal complaint and a non-formal complaint, and the rights and protections that accompany filing a formal complaint. These rights and protections include:
      • The right to request an onsite inspection. Notification in writing if an inspection is deemed unnecessary because there are no reasonable grounds to believe that a violation or danger exists.
      • The right to obtain review of a decision not to inspect by submitting a request for review in writing.
3. Information received by telephone from a current employee is considered a non-formal complaint until that individual provides a signed copy of the information. The employee can send or fax a signed copy of the information, request that an OSHA-7 form be sent, or sign the information in person at the HIOSH Office. Normally a complainant has five working days to formalize an electronic complaint.
4. If appropriate, inform the complainant of rights to confidentiality in accordance with Section 8(f)(1) of the Law. Whether confidentiality is requested or the complainant attempts to waive the confidentiality, the identity of the complainant shall be protected in accordance with the Law.
5. Explain Section 8(e) (discrimination) rights.

G. Procedures for an Inspection.

1. Upon receipt of a complaint or referral, the Branch will evaluate all available information to determine whether there are reasonable grounds to believe that a violation or hazard exists.
   1. If necessary, reasonable attempts will be made to contact the individual who provided the information in order to obtain additional details or to clarify issues raised in the complaint or referral. See the Complaint Questionnaire beginning on page 9-14.
   2. The Branch Manager may determine not to inspect a facility if he/she has a substantial reason to believe that the condition complained of is being or has been abated.
2. Despite the existence of a complaint, if the Branch Manager, believes there is no reasonable grounds that a violation or hazard exists, no inspection or inquiry will be conducted.
   1. Where a formal complaint has been submitted, the complainant will be notified in writing of HIOSH’s intent not to conduct an inspection, the reasoning behind the determination, and the right to have the determination reviewed under §12-51-12, HAR. The justification for not inspecting will be noted in the case file.
   2. In the event of a non-formal complaint or referral, if possible, the individual providing the information will be notified by appropriate means of HIOSH’s intent not to conduct an inquiry or inspection. The justification for not inspecting or conducting an inquiry will be noted in the case file.
3. If the information contained in the complaint or referral meets at least one of the inspection criteria listed in Paragraph I.C. of this chapter, Criteria Warranting an Inspection, and there are reasonable grounds to believe that a violation or hazard exists, the Branch is authorized to conduct an inspection.
   1. If appropriate, the Branch will inform the individual providing the information that an inspection will be scheduled and that he or she will be advised of the results.
   2. If a joint (safety and health) inspection is warranted, the receiving Branch Manager shall coordinate a joint inspection with the other discipline Branch Manager. Joint inspections may be warranted when:
      • The complaint also alleges violations of the other discipline that allege an imminent danger situation or serious hazards; or
      • The employer is on the Inspection Scheduling System for the other discipline, or the information provided addresses an alleged hazard covered by an emphasis program adopted by HIOSH for the other discipline.
   3. After the inspection, the Branch will send the individual a letter addressing each information item, with reference to the citation(s) or a sufficiently detailed explanation for why a citation was not issued.
4. If an inspection is warranted, it will be initiated as soon as resources permit. Inspections resulting from formal complaints of serious hazards will normally be initiated within five working days of formalizing.

H. Procedures for an Inquiry.

1. If the complaint or referral does not meet the criteria for initiating an onsite inspection, an inquiry will be conducted. The Branch Manager will promptly contact the employer to notify it of the complaint or referral and its allegation(s), and fax or email a confirming letter.
2. If a non-formal complaint is submitted by a current employee or a representative of employees that does not meet any of the inspection criteria, the complainant may be given five working days to make the complaint formal.
   1. The complainant may come into the HIOSH Office and sign the complaint, or mail or fax a signed complaint letter. Additionally, a Complaint (OSHA-7) can be mailed or faxed to the complainant, if appropriate.
   2. If the complaint is not made formal after five working days, after making a reasonable attempt to inform the complainant of the decision, HIOSH will proceed with the inquiry process.
3. The employer will be advised of what information is needed to answer the inquiry and encouraged to respond by fax or email. Employers are encouraged to do the following:
   1. Immediately investigate and determine whether the complaint or referral information is valid and make any necessary corrections or modifications.
   2. Advise the Branch Manager either in writing or via email within five working days of the results of the investigation into the alleged complaint or referral information. At the discretion of the Branch Manager, the response time may be longer or shorter than five working days, depending on the circumstances. Additionally, although the employer is requested to respond within the above time frame, the employer may not be able to complete abatement action during that time, but is encouraged to do so.
   3. Provide the Branch Manager with supporting documentation of the findings, including any applicable measurements or monitoring results, and photographs and/or videos that the employer believes would be helpful, as well as a description of any corrective action the employer has taken or is in the process of taking.
   4. Post a copy of the letter from HIOSH where it is readily accessible for review by all employees.
   5. Return a copy of the signed Certificate of Posting to the HIOSH Office.
   6. If there is a recognized employee union or safety and health committee in the facility, provide it with a copy of HIOSH’s letter and the employer’s response.
4. As soon as possible after contacting the employer, a notification letter will be faxed to the employer, or mailed where no fax is available. Sample letters to complainants and employers are provided on the NCR. If email is an acceptable means of responding, this should be indicated in the notification letter and the proper email address should be provided.
5. If no employer response or an inadequate employer response is received after the allotted five working days, additional contact with the employer may be made before an inspection is scheduled. If the employer provides no response or an inadequate response, or if HIOSH determines from other information that the condition has not been or is not being corrected, an inspection will be scheduled.
6. The complainant will be advised of the employer’s response, as well as the complainant’s rights to dispute that response, and if the alleged hazard persists, of the right to request an inspection. When HIOSH receives an adequate response from the employer and the complainant does not dispute or object to the response, an onsite inspection normally will not be conducted.
7. If the complainant is a current employee or a representative of employees and wishes to dispute the employer’s response, the disagreement must be submitted in writing and signed, thereby making the complaint formal.
   1. If the employee disagreement takes the form of a written and signed formal complaint, see Paragraph I.G. of this chapter, Procedures for an Inspection.
   2. If the employee disagreement does not take the form of a written and signed formal complaint, some discretion is allowed in situations where the information does not justify an onsite inspection. In such situations, the complainant will be notified of HIOSH’s intent not to conduct an inspection and the reasoning behind the determination. This decision should be thoroughly documented in the case file.
8. If a signed complaint is received after the complaint inquiry process has begun, the Branch Manager will determine whether the alleged hazard is likely to exist based on the employer’s response and by contacting the complainant. The complainant will be informed that the inquiry has begun and that the complainant retains the right to request an onsite inspection if he/she disputes the results and believes the hazard still exists.
   1. The complaint must not be closed until HIOSH verifies that the hazard has been abated.
   2. The justification for not conducting an inquiry will be noted in the case file.

I. Complainant Protection.

1. Identity of the Complainant.
   The complainant’s identity will be withheld from the employer in accordance with Section 396-8(f) of the Law. No information will be given to the employer that would allow the employer to identify the complainant.
2. Whistleblower Protection.
   1. Section 8(e) of the Law provides protection for employees who believe that they have been the subject of an adverse employment action in retaliation for engaging in activities related to workplace safety or health. Any employee who believes that he or she has been discharged or otherwise retaliated against by any person as a result of engaging in such activities may file a whistleblower complaint. The complaint must be filed within sixty days of the discharge or other retaliation.
   2. Complainants should always be advised of their Section 8(e) rights and protections upon initial contact with HIOSH and whenever appropriate in subsequent communications.

J. Recording in OIS.

Information about complaint inspections or inquiries must be recorded in OMIS following the current instructions outlined in the FOM. Referrals reported by the employer will be recorded in OIS following the guidance provided in the Memorandum entitled, “Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39”, dated December 24, 2014, or unless superseded by future agency-approved correspondence.

II. Whistleblower Complaints.

A. HIOSH Enforcement.

OSHA allows HIOSH to enforce the whistleblower or anti-retaliation provisions of the OSH Act. HIOSH does so under Section 396-8(e) of the Law. The Law provides that employers may not discharge or otherwise retaliate against an employee because the employee has reported an alleged violation related to the statute to an employer or a government agency, or otherwise exercised any rights provided to employees by the Law.

See CPL 02-03-003, Whistleblower Investigations Manual, dated September 20, 2011, and adopted by HIOSH on [Insert date].

B. Other Whistleblower Statutes (enforced by OSHA)

When a retaliation complaint is made under any of the other sixteen federal whistleblower statutes enforced by OSHA other than the OSH Act, the complainant should be referred promptly to the OSHA Honolulu Area Office because the requirements for filing complaints under those statutes vary from those of the OSH Act. They should also be advised that there are statutory deadlines for filing these complaints.

C. CSHOs and Consultants Responsibilities.

In the context of an OSHA enforcement action or a consultation activity, the complainant will be advised of the protection against retaliation afforded by §396-8(e), HRS. A Section 8(e) complaint may be in any form, including an oral complaint made to a CSHO. Thus, if a person alleges that he has suffered an adverse action because of activity protected under Section 8(e), CSHOs will record that person’s identifying information and the date and time of this initial contact on an OSHA-87 form and forward it to the HIOSH Supervisory Investigator (currently the OH Manager) for processing.

D. State Plan States

In State Plan States, employees may file occupational safety and health retaliation complaints with Federal OSHA, the State, or both. Federal OSHA normally refers such complaints to the State Plan States for investigation. OSHA’s Whistleblower Manual outlines OSHA’s referral/deferral policies for such complaints.

III. Decision Trees.

A. Decision Tree for when Information is Obtained in Writing.

See tree on page 9-11 for OSHA enforcement action or consultation activity when information is obtained in writing.

B. Decision Tree for when Information is Obtained Orally.

See tree on page 9-13 for OSHA enforcement action or consultation activity when information is obtained orally.