Chapter 4 – Conduct of Investigation

I. Scope

This chapter sets forth the policies and procedures investigators must follow during the course of an investigation. The policies and procedures are designed to ensure that complaints are efficiently investigated, and that the investigation is well documented. It does not attempt to cover all aspects of a thorough investigation, and it must be understood that due to the diversity of cases that may be encountered, professional discretion must be exercised in situations that are not covered by these policies. If there is a conflict between HRS § 396-8(e) or regulations and the procedures set out in this chapter, the statutory and/or regulatory provisions take precedence. Investigators should consult with their SI when additional guidance is needed.

II. General Principles

1. Reasonable Balance
   The investigative procedures described in this chapter are designed to ensure that a reasonable balance is achieved between the quality and timeliness of investigations. The procedures outlined in this chapter will help investigators complete investigations as expeditiously as possible while ensuring that each investigation meets HIOSH’s quality standards. Reasonable balance is achieved when further evidence is not likely to change the outcome. These procedures reflect the best practices developed across all OSHA regions.
2. Investigator as a Neutral Party
   The investigator should make clear to all parties that DLIR does not represent either Complainant or Respondent. Rather, the investigator acts as a neutral party in order to ensure that both the Complainant’s allegation(s) and the Respondent’s positions are adequately investigated. On this basis, relevant and sufficient evidence should be identified and collected in order to reach an appropriate determination in the case.
3. Investigator’s Expertise
   The investigator, not Complainant or Respondent, is the expert regarding the information required to satisfy the elements of a violation of the statute administered by HIOSH. The investigator will review all relevant documents and interview relevant witnesses in order to resolve discrepancies in the case. Framing the issues and obtaining information relevant to the investigation are the responsibility of the investigator, although the investigator will need the cooperation of Complainant, Respondent, and witnesses.
4. Reasonable Cause to Believe a Violation Occurred
   For HRS § 396-8(e) cases, after consulting with DAG, HIOSH will issue merit findings when there is reasonable cause to believe that a violation has occurred. Investigators must be aware of HLRB precedent and the requisite legal standards that apply to both merit and non-merit cases established by the HLRB. Investigators should engage in informal consultations with the DAG to ensure that the investigation gathers comprehensive relevant information necessary for the DAG to assess cases suitability for litigation. See Chapter 2.IV, Reasonable Cause, for more information.
5. Supervisory Review is Required
   Supervisory review and approval are required before docketed case files can be closed.
   
   If a supervisor has conducted the investigation, the Administrator or his/her designee (another manager) must agree that closure is appropriate, and the manager’s agreement should be documented in the case file.

III. Case File

Upon assignment, the investigator will begin preparing the investigation’s case file. A standard case file contains the complaint and/or the HIOSH-87 form or the appropriate intake worksheet, all documents received or created during the intake and evaluation process (including screening notes and assignment memorandum), copies of all required opening letters, and any original evidentiary material initially supplied by Complainant or Respondent. All evidence, records, administrative material, photos, recordings, and notes collected or created during an investigation must be organized and maintained in the case file.

A. File Format

1. Electronic Case Files
   All Regions are transitioning to electronic case files per the Office of Management and Budget (OMB) directive, dated August 24, 2012, requiring the use of electronic recordkeeping and eliminating paper to the fullest extent possible. See Instruction CPL 02-03-009, Electronic Case File System Procedures for the Whistleblower Protection Program, dated June 18, 2020.
2. Paper Case Files
   As noted above, OSHA regions are transitioning to keeping electronic case files as a general rule. As noted in the Electronic Case File System Procedures cited above, Regions should encourage both Complainants and Respondents to submit materials in electronic format. Parties are not however, required, to submit materials in electronic format.
   
   When a party submits evidence in paper format, HIOSH should scan and save the document as a PDF. Once the paper document has been converted to a PDF, the PDF becomes the official government record, although HIOSH should retain the paper submissions until the case is closed at the HIOSH level.
   
   To the extent a paper file is kept, the file is organized with the transmittal documents and other administrative materials on the left side and any evidentiary material on the right side. Care should be taken to keep all material securely fastened in the file folder to avoid loss or damage. The retention period for both paper and electronic case files shall follow the DLIR Approved Retention and Disposition Schedules (Forms SA-1) Policy, revised 12/2022, which states that discrimination case files must be retained for 5 years after the end of the federal fiscal year in which the case was closed.

B. Documenting the Investigation

With respect to all activities associated with the investigation of a case, investigators must fully document the case file to support their findings. A well-documented case file assists reviewers of the file. Documentation should be arranged chronologically by date of receipt where feasible.

C. Case Activity Log

All telephone calls made, and voice mails received during the course of an investigation, other than those with HIOSH personnel, must be accurately documented and notation of calls and voice mails must be typed in the case activity log. If a telephone conversation with one of the parties or witnesses is lengthy and includes a significant amount of pertinent information, the investigator should document the substance of this contact in a “Memo to File” to be included as an exhibit in the case file.

In addition to telephone calls, the case activity log must, at a minimum, note the key steps taken during the investigation. For example, investigative research and interviews conducted, notifications sent, and documents received from the parties should be noted in the activity log.

D. Investigative Correspondent

Templates for complaint notifications, administrative closure letters, Determination Notice and Order (equivalent to OSHA’s Secretary’s Findings), and 10-day contact letters are available in the HIOSH M drive. The templates will be used to the extent possible. Future interface with the OIS-Whistleblower page for such templates will be considered. Correspondence must be sent (either by mail, third party carrier, or electronic means) in a way that provides delivery confirmation. Delivery receipts will be preserved in the case file. Findings in all cases may be sent by electronic means.

Correspondence by Email. Subject lines of emails delivering formal investigative correspondence should be appropriately descriptive (e.g., “Respondent/Complainant/Case Number” or “Respondent/Complainant/Case Number – Notification”). The formal correspondences are sent as letters attached to the emails. These emails should also be new emails, not sent as responses to other emails. Formal investigative correspondence emails must provide delivery confirmation. The original email of any email sent with the delivery confirmation option engaged must be placed in the relevant correspondence folder separately from the delivery confirmation (i.e., do not place in the folder just the delivery confirmation email with the original email attached; any attachments to the original email are lost this way).

E. Investigative Research

It is important that investigators adequately plan for each investigation. The investigator should research whether there are prior or current retaliation and/or safety and health cases related to either Complainant or Respondent. Such information normally will be available from the OITTS-Whistleblower, OIS, and the HIOSH office. Examples of information sought during this investigation may include copies of safety and health complaints filed with HIOSH, inspection reports, and citations. -Research results must be documented in the case file. When research reveals no relevant results, the investigator must still note in the case activity log the pre-investigation research that was performed (for example, by listing the searches that the investigator did in OIS-Whistleblower) and that no relevant results were found.

IV. Referrals and Notifications

Allegations of safety and health hazards, or other regulatory violations, will be referred promptly to the appropriate office or agency through established channels. This includes new allegations that arise during witness interviews. Allegations of occupational safety and health hazards covered by the Law, for example, will be referred to the appropriate enforcement branch as soon as possible.

1. Other Agencies
   Informational copies of all incoming complaints, determinations, and orders, as well as notification of all other case closure actions, will be sent to federal OSHA or other relevant agency(s) promptly.
2. Coordination with Other Agencies
   If information received during the investigation indicates that the Complainant has filed a concurrent retaliation/discrimination complaint, safety and health complaint, or any other complaint with another government agency ( i.e. Unemployment Insurance Division or Workers’ Compensation Division), the investigator should consider whether to request from Complainant any other agency investigative documents or information regarding contact persons and should consider contacting such agency to determine the nature, status, and results of that complaint. This coordination may result in the discovery of valuable information pertinent to the whistleblower complaint, and may, in certain cases, preclude unnecessary duplication of government investigative efforts. However, caution should be exercised when using information from that agency as their statutes and procedures may differ significantly.
3. Other Legal Proceedings
   The investigator should also gather information concerning any other current or pending legal actions that the Complainant may have initiated against Respondent(s) related to the protected activity, the adverse action and/or other aspects of Complainant’s employment with Respondent, such as lawsuits, arbitrations, and grievances. Obtaining information related to such actions may produce evidence of conflicting testimony or could result in the postponement of the investigation or deferral to the outcome of the other proceedings.

V. Amended Complaint

After filing a retaliation complaint with HIOSH, Complainant may wish to amend the complaint to add additional allegations and/or additional Respondents. It is HIOSH’s policy to permit the liberal amendment of complaints, provided that the original complaint was timely, and the investigation has not yet concluded.

1. Form of Amendment
   No particular form of amendment is required. A complaint may be amended orally or in writing. HIOSH will reduce oral amendments to writing. If Complainant is unable to file the amendment in English, HIOSH will accept the amendment in any language.
2. Amendments Filed within Statutory Filing Period
   At any time prior to the expiration of the statutory filing period for the original complaint (60 days), a Complainant may amend the complaint to add additional allegations and/or additional respondents.
3. Amendments Filed After the Statutory Filing Has Expired
   If amendments are received after the limitations period for the original complaint has expired, the investigator must evaluate whether the proposed amendment (adding subsequent alleged adverse actions and/or additional respondents) reasonably falls within the scope of the original complaint. If the amendment reasonably relates to the original complaint, then it must be accepted as an amendment unless the exception noted in the last sentence of paragraph “E” below applies. If the amendment is determined to be unrelated to the original complaint, then it may be handled as a new complaint of retaliation and processed accordingly.
4. Processing of Amended Complaints
   Whenever a complaint is amended, regardless of the nature of the amendment, the Respondent(s) must be notified in writing of the amendment by a method that allows HIOSH to confirm delivery and be given an opportunity to respond to the new allegations contained in the amendment. The amendment and notification to Respondent of the amendment must be documented in the case file.
5. Amended Complaints Distinguished from New Complaints (i.e., what “reasonably relates”)
   The mere fact that the named parties are the same as those involved in a current or ongoing investigation does not necessarily mean that new allegations should be considered an amendment. If the alleged retaliation involves a new or separate adverse action that is unrelated to the active investigation, then the complaint may be docketed with its own unique case number and processed as a new case. A new allegation should also be docketed as a new complaint when an amendment to the original complaint would unduly delay a determination of the original complaint.
6. Decreased Complainant
   If Complainant passes away during the HIOSH investigation, HIOSH should consult Complainant’s designated representative or a family member to determine whether Complainant’s estate will continue to pursue the retaliation claim. In such circumstances, Complainant’s estate will be automatically substituted for Complainant. HIOSH should consult with the DAG regarding potential remedies and other pertinent issues as needed in these circumstances.

VI. Complainant Interview and Contact

The investigator must attempt to interview the Complainant in all docketed cases. – This interview may be conducted as part of the screening process. If a full Complainant interview is not conducted as part of the complaint screening process, HIOSH will endeavor to interview Complainant within 30 days of receiving Respondent’s position statement or two months of the docketing of the complaint, whichever is sooner. It is highly desirable to record the Complainant interview (if Complainant agrees) or obtain a signed interview statement from Complainant during the interview. – Complainant may have an attorney or other personal representative present during the interview, so long as the investigator has obtained a signed “Designation of Representative” form.

The investigator must attempt to obtain from Complainant all documentation legally in their possession that is relevant to the case. Relevant records may include:

• Copies of any termination notices, reprimands, warnings, or personnel actions
• Performance appraisals.
• Earnings and benefit statements.
• Grievances
• Unemployment or worker’s compensation benefits, claims and determinations.
• Job position descriptions
• Company employee policy handbooks.
• Copies of any charges or claims filed with other agencies
• Collective bargaining agreements
• Arbitration agreements
• Emails, voice mails, phone records, texts, and other relevant correspondence related to Complainant’s employment, as well as relevant social media posts.
• Medical records. Most often medical records should not be obtained until it is determined that those records are needed to proceed with the investigation. Because medical records require special handling, investigators must familiarize themselves with the requirements of HIOSH Instruction CPL 02-02-072, Rules of Agency Practice and Procedure Concerning HIOSH Access to Employee Medical records, August 22, 2007, adopted by HIOSH on December 19, 2007.

The relief sought by Complainant should be determined during the interview. If discharged or laid off by Respondent, Complainant should be advised of their obligation to seek other employment (a.k.a. “mitigate,” see Chapter 6.IV.D, Mitigation Considerations), and to maintain records of interim earnings. Failure to do so could result in a reduction in the amount of the back pay to which Complainant might be entitled in the event of settlement, issuance of merit findings and order, or litigation. Complainant should be advised that Respondent’s back pay liability ordinarily ceases only when Complainant refuses a bona fide, unconditional offer of reinstatement. See Chapter 6.IV.A, Lost Wages.

The Investigator must also inform Complainant that Complainant must preserve all records that relate to the whistleblower complaint, such as documents, emails, texts (including preserving texts, photographs, and other documentation from a prior cell phone if Complainant replaces it), photographs, social media posts, etc. that relate to the alleged protected activity, the alleged adverse action, and any remedies Complainant seeks. Thus, for instance, Complainant should retain documentation supporting Complainant’s compensation with Respondent, efforts to find work and earnings from any new employment, and any other claimed losses resulting from the adverse action, such as medical bills, pension plan losses and fees, repossessed property, moving or job search expenses, etc.

After obtaining Respondent’s position statement, the investigator will contact Complainant to conduct a rebuttal interview to resolve any discrepancies between Complainant’s allegations and Respondent’s defenses. In cases where the investigator has already conducted the complainant interview, the Complainant may decide to submit a written rebuttal in lieu of the rebuttal interview.

Complainant must be informed about the investigation process and their right to simultaneously pursue legal action in the courts. Additionally, Complainant should be advised that, in accordance with HRS § 396-14, Records from the HIOSH investigation cannot be used in any civil action.

VII. Complainant Lack of Cooperation/Unresponsiveness

Complaints may be dismissed for Lack of Cooperation (LOC) on the part of Complainant. These circumstances may include, but are not limited to, Complainant’s:

• Failure to be reasonably available for an interview.
• Failure to respond to repeated correspondence or telephone calls from HIOSH
• Failure to attend scheduled meetings; and
• Other conduct making it impossible for HIOSH to continue the investigation, such as excessive requests for extending deadlines.
• Harassment, inappropriate behavior, or threats of violence may also justify dismissal for LOC and lead to other actions/referrals provided under law pursuant to HRS 396-10(n).
• When Complainant fails to provide requested documents in Complainant’s possession or a reasonable explanation for not providing such documents, HIOSH may draw an adverse inference against Complainant based on this failure unless the documents may be acquired from Respondent. If the documents cannot be acquired from Respondent, then Complainant’s failure to provide requested documents or a reasonable explanation for not doing so may be included as a consideration with the factors listed above when considering whether a case should be dismissed for LOC.

A. Dismissal Procedures for Lack of Cooperation/Unresponsiveness

In situations where an investigator is having difficulty locating Complainant following the docketing of the complaint to initiate or continue the investigation, the following steps must be taken:

1. Telephone Complainant during normal work hours and contact Complainant by email. Notify Complainant that they are expected to respond within 48 hours of receiving this phone message or email.
2. If Complainant fails to contact the investigator within 48 hours, HIOSH will notify Complainant in writing that it has unsuccessfully attempted to contact Complainant to obtain information needed for the investigation and that Complainant must contact the investigator within 10 days of delivery of the correspondence. Complainant will be notified using a method that permits HIOSH to confirm delivery, such as email or U.S. mail, delivery confirmation required, or hand delivery. The notification will specify direct contact information for the HIOSH Office or the investigator including: mailing address, telephone number, and email address. If no response is received within 10 days, the SI may approve the termination of the investigation and dismiss the complaint. Proof of delivery of the communication must be preserved in the file.
3. Complainant has an obligation to provide HIOSH with all available methods of contact, including a working telephone number, email address, or mailing address of record. Complainant also has an obligation to update HIOSH when contact information changes. HIOSH may dismiss a complaint for lack of cooperation if HIOSH is unable to contact Complainant due to the absence of up-to-date contact information.
4. Consistent with the applicable regulations, when HIOSH dismisses a case for lack of cooperation, an abbreviated letter, with an explanation of the right to request an informal hearing with the Administrator will be provided to the Complainant. HIOSH has discretion to reopen the investigation within 30 days of delivery of the dismissal letter to Complainant if Complainant contacts HIOSH, indicates a desire to pursue the case, and provides a reasonable explanation for the failure to maintain contact with HIOSH.

VIII. Contact with Respondent

1. In many cases, following receipt of HIOSH’s notification letter, Respondent forwards a written position statement, which may or may not include supporting documentation. The investigator should not rely on assertions in Respondent’s position statement unless they are supported by evidence or are undisputed. Even if the position statement is accompanied by supporting documentation, the investigator should still contact Respondent to interview witnesses, review records and obtain additional documentary evidence to test Respondent’s stated defense(s). See Chapter 2.VII, Testing Respondent’s Defense (a.k.a. Pretext Testing), for example, for information on pretext testing.
   
   In all circumstances, at a minimum, copies of relevant documents and records should be requested, including disciplinary records if the complaint involves a disciplinary action or the relevant policy where Respondent claims Complainant was terminated or disciplined for violating a policy.
2. If Respondent requests time to consult legal counsel, the investigator must advise Respondent that future contact in the matter will be through such representative and that this does not alter the 14-day time to respond to the complaint. A reasonable extension to the deadline may be granted, but the investigator must be mindful that for any leeway given to Respondent, substantially equivalent leeway should also be granted to Complainant for the rebuttal if needed. A Designation of Representative form should be completed by Respondent’s representative to document Respondent’s representative’s involvement.
   
   If Respondent has designated an attorney to represent the company, interviews with management officials should ordinarily be scheduled through the attorney, who generally will be afforded the right to be present during any interviews of management officials. All document requests and any other attempts at communication with the Respondent shall, as a general rule, be directed through the Respondent’s attorney
3. In the absence of a signed Designation of Representative, the investigator is not bound or limited to making contacts with Respondent through any one individual or other designated representative (e.g., safety director). If a position statement was received from Respondent, the investigator’s initial contact should be the person who signed the letter unless otherwise specified in the letter.
4. The investigator should, in accordance with the reasonable balance standard, interview all relevant Respondent witnesses who can provide information relevant to the case. The investigator should attempt to identify other witnesses at the Respondent’s facility that may have relevant knowledge. . Witnesses must be interviewed individually, in private, to avoid confusion and biased testimony, and to maintain confidentiality.
   
   Witnesses must be advised of their rights regarding protection under the HIOSH whistleblower statute and advised that they may contact HIOSH if they have been subjected to retaliation because they participated in a HIOSH investigation.
   
   There may be circumstances where there is reason to interview management or supervisory officials outside of the presence of counsel or other officials of the company, such as where the official has information helpful to Complainant and does not wish the company to know that they are speaking with the investigator. In that event, an interview should ordinarily be scheduled in private and the procedures for handling confidential witness interviews must be followed. See Chapter 4.VIII, Confidentiality.
   
   Section 396-4(b)(5) of the HIOSH Law authorizes whistleblower investigators to question any employee privately during regular working hours or at other reasonable times. The purpose of such interviews is to obtain whatever information whistleblower investigators deem necessary or useful in carrying out investigations effectively. Thus, under the HIOSH Law, HIOSH has a statutory right to interview non-management, non-supervisory employees in private.
   
   Additionally, the HIOSH Law provides that investigations be conducted in a manner that preserves the confidentiality of any person who provides information on a confidential basis, other than the Complainant.
   
   Thus, Respondent’s attorney does not have the right to be present, and should not be permitted to be present, during interviews of non-management or non-supervisory employees. If Respondent’s attorney insists on being present during interviews of non-management or non-supervisory employees, HIOSH should consult with DAG.
5. The investigator should make every effort to obtain copies of, or at least review and document in a Memo to File, all pertinent data and documentary evidence which Respondent offers and which the investigator believes is relevant to the case.
6. If a telephone conversation with Respondent or its representative includes a significant amount of pertinent information, the investigator should document the substance of this contact in a Memo to File to be included as an exhibit in the case file. In this instance or when written correspondence is noted, the case diary may simply indicate the nature and date of the contact and the comment “See Memo/Document – Exhibit #.”
7. If at any time during the initial (or subsequent) meeting(s) with Respondent’s officials or counsel, Respondent suggests the possibility of an early resolution to the matter, the investigator should immediately and thoroughly explore how an appropriate settlement may be negotiated and the case concluded. (See Chapter 6 regarding settlement techniques and adequate agreements.)

IX. Unresponsive/Uncooperative Respondent

Below is a non-exclusive list of examples of unresponsive or uncooperative Respondents and related procedures.

1. Respondent Bankruptcy
   When investigating a Respondent that has filed for bankruptcy, the investigator should promptly consult with their Administrator, SI, and DAG. Otherwise, Complainants and DLIR may lose their rights to obtain any remedies.
2. Respondent Out-of-Business
   When investigating a Respondent that has gone out of business, the investigator should consult with the Administrator, SI, and DAG, as appropriate. HIOSH should determine whether there are legal grounds to continue the investigation against successors in interest of the original Respondent.
3. Uncooperative Respondent
   When conducting an investigation under HRS § 396-8(e), subpoenas may be obtained for witness interviews or records. See Chapter 4.XII.A below for procedures for obtaining subpoenas.
   
   When dealing with a nonresponsive or uncooperative Respondent, it will frequently be appropriate for the investigator, in consultation with the SI and/or DAG, to draft a letter informing Respondent of the possible consequences of failing to provide the requested information in a timely manner. Specifically, Respondent may be advised that its continued failure to cooperate with the investigation may lead HIOSH to reach a determination without Respondent’s input. Additionally, Respondent may be advised that HIOSH may draw an adverse inference against it based on its refusal to cooperate with specific investigative requests.
4. Uncooperative Respondent Representative
   When a Respondent is cooperating with an investigation, but their representative is not, the investigator should send a letter or email to both Respondent and the representative requesting them to affirm the designation of representation in the case file. If the designation of representation is not affirmed within 10 business days, the investigator may treat Respondent as unrepresented. HIOSH should not decline to accept written information received directly from a represented Respondent.

X. Subpoenas, Document and Interview Requests

1. Subpoenas
   When conducting an investigation under HRS § 396-8(e), subpoenas may be obtained for witness interviews or records. Subpoenas should be obtained following procedures established by the Administrator. HIOSH has two types of subpoenas for use in these cases. A Subpoena Ad Testificandum is used to obtain an interview from a reluctant witness. A Subpoena Ad Testificandum is used to obtain an interview from a reluctant witness. A Subpoena Duces Tecum is used to obtain documentary evidence. They can be served on the same party at the same time, and HIOSH can require the named party to appear at a designated office for production. Subpoenas Ad Testificandum may specify the means by which the interviews will be documented or recorded (such as whether a court reporter will be present).
   
   An administrative subpoena can be signed by either the Administrator or whom the Administrator in writing has delegated authority to sign subpoenas.
   
   The subpoena must contain language mandating a reasonable timeframe for the witness to comply, identify the statutory provision(s) under which the subpoena is issued, use broad language for requests, and identify the investigator responsible for delivery and completion of the service form. Before issuing a subpoena, HIOSH should consult with DAG regarding the appropriate timeframes and language. If the witness decides to cooperate, the SI can choose to lift the subpoena requirements.
   
   A designated representative may accept service of the subpoena. If the designated representative has not accepted service of the subpoena, the subpoena will be served to the party named by personal service. Leaving a copy at a place of business or residence is not personal service. In exceptional circumstances, service may be by certified mail with return receipt requested. Where no individual’s name is available, the subpoena can be addressed to a business’ or organization’s “Custodian(s) of Records.
   
   HIOSH shall pay witnesses the same fees and mileage that are paid witnesses in Hawaii courts. The witness fees and mileage to which these provisions refer are set forth in 28 U.S.C. § 1821. HIOSH should consult with DAG as needed on the calculation of witness fees.
   
   If the witness fails to cooperate or refuses to respond to the subpoena, the investigator will consult with the supervisor regarding how best to proceed. One option is to evaluate the case and make a determination based on the information gathered during the investigation. The other option is to request that DAG enforce the subpoena in state district court.
2. Early Involvement of the Deputy Attorney General (DAG)
   In general, HIOSH should consult with the DAG as early as possible in the investigative process for all instances where HIOSH believes believes that there is a potential that the case will be referred for litigation, that HIOSH will issue merit findings, or that DAG may otherwise be of assistance. — For example, DAG may be of assistance in cases where settlement discussions reach an impasse, where assistance is needed to determine the appropriate remedy (see Chapter 6, Remedies), or where a case presents a novel question of statutory coverage or protected activity. When HIOSH has reasonable cause to believe that a violation occurred, HIOSH should consult informally with DAG, if it has not already done so. Consulting early with DAG is particularly important in cases that HIOSH anticipates referring to DAG for litigation as early consultation helps to ensure that the investigation captures as much relevant information as possible so that DAG can evaluate whether the case is suitable for litigation.  
3. Further Interviews and Documentation
   It is the investigator’s responsibility, in consultation with the SI, to determine and pursue all appropriate investigative leads deemed pertinent to the investigation, with respect to Complainant’s and Respondent’s positions. Contact must be made whenever possible with relevant witnesses, and reasonable attempts must be made to gather pertinent data and materials from available sources.
   
   The investigator must document all telephone conversations with witnesses or party representatives in the case activity log and, if the conversation is substantive, in a Memo to File.  (See Chapter 9 on handling requests for disclosure of case activity logs and Memos to File.)

XI. Resolve Discrepancies

After obtaining Respondent’s position statement, the investigator will contact Complainant to conduct a rebuttal interview and will contact other witnesses as necessary to resolve any relevant discrepancies between Complainant’s allegations and Respondent’s defenses.

XIII. On-site Investigation, Telephonic and Recorded Interviews

At the beginning of all interviews, the investigator will inform the interviewee in a tactful and professional manner that HRS § 396-10(m) makes it a criminal offense to knowingly make a false statement or misrepresentation to a government representative during the course of the investigation. If the interview is recorded electronically, this notification and the interviewee’s acknowledgement must be on the recording. Respondent’s designated representative generally has the right to be present for all interviews with currently employed managers, but interviews of non-management employees are to be conducted in private.¹ The witness may request that an attorney or other personal representative be present at any time and, if the witness does so, the investigator should obtain a signed “Designation of Representative” form and include it in the case file. Refer to XIII.D. in instances where the Respondent’s designated representative asserts that they also represent the non-management witness. Witness statements and evidence may be obtained by telephone, mail, or electronically.

If an interview is recorded electronically, the investigator must be a party to the conversation, and it is HIOSH’s policy to have the witness acknowledge at the beginning of the recording that the witness understands that the interview is being recorded. At the SI’s discretion, in consultation with the DAG, it may be necessary to transcribe electronic recordings used as evidence in HLRB hearings. All recordings are government records and need to be included in the case file.

Prior to electronically recording an interview, investigators should familiarize themselves with the guidance set forth in HIOSH Instruction CPL 02-00-098, Guidelines for Case File Documentation for Use with Videotapes and Audiotapes, October 12, 1993, adopted by HIOSH on December 20, 1993.

XIII. Confidentiality

The informer privilege allows the government to withhold the identity of individuals who provide information about violations of laws, including retaliation in violation of HIOSH’s whistleblower statute. The informer privilege also protects the contents of witness statements to the extent that disclosure would reveal the witness’s identity.

When interviewing a witness (other than Complainant and current management officials representing Respondent), the investigator should inform the witness that their identity will remain confidential to the extent permitted by law. This pledge of confidentiality should be clearly noted in any interview statement, memo to file, or other documentation of the interview and should be included in any audio recording of the interview. The investigator also should explain to the witness that the witness’s identity will be kept in confidence to the extent allowed by law, but that if they are going to testify in a proceeding, the existence and content of the interview may need to be disclosed. Indeed, a court or HLRB may require the disclosure of the names of witnesses at or near trial. Furthermore, the witness should be advised that their identity might be disclosed to another federal agency, under a pledge of confidentiality from that agency.  

Under HIOSH’s whistleblower statute, any witness (other than the Complainant) may provide information to HIOSH confidentially. There may be circumstances where there is reason to interview current management or supervisory officials outside of the presence of counsel or other officials of the company, such as where the official has information helpful to Complainant and does not wish the company to know that they are speaking with the investigator. In that event, an interview should ordinarily be scheduled in private and the above procedures for handling confidential witness interviews should be followed.

XIV. Party Representation at Witness Interviews

Respondent and Complainant do not generally have the right to have a representative present during the interview of a non-managerial employee. Where either party is attempting to interfere with the rights of witnesses to request confidentiality, investigators should coordinate with their SI, Administrator, and DAG and insist on private interviews of non-management witnesses. If witnesses appear to be rehearsed, intimidated, or reluctant to speak in the workplace, the investigator may decide to simply get their names and personal telephone numbers and contact these witnesses later, outside of the workplace.

XV. Records Collection

The investigator must attempt to obtain copies of appropriate records, including pertinent documentary materials as required. Such records may include safety and health inspections, or records of inspections conducted by other enforcement agencies, depending upon the issues in the complaint. If this is not possible, the investigator should review the documents, taking notes or at least obtaining a description of the documents in sufficient detail so that they may be produced later during proceedings. Refer to XVIII of this chapter for the procedures regarding the handling of documents and requests by the Complainant and Respondent.

XVII. Closing Conference

Upon completion of the field investigation and after discussion of the case with the SI, the investigator will conduct a closing conference with Complainant (in cases in which HIOSH anticipates issuing non-merit findings) or Respondent (in cases in which HIOSH anticipates issuing merit findings). This closing conference may be conducted in person, by telephone, or via videoconference, depending on the circumstances of the case. In addition, depending on the case’s investigative stage, the closing conference may be conducted in conjunction with the rebuttal interview, if warranted.

1. During the closing conference, the investigator will provide a brief verbal summary of the recommendation and basis for the recommendation.
2. It is unnecessary and improper to reveal the identity of witnesses interviewed. Complainant should be advised that HIOSH does not normally reveal the identity of witnesses, especially if they requested confidentiality.
3. Although HIOSH anticipates that in most cases no new evidence or argument will be raised in the closing conference, if Complainant (or Respondent) attempts to offer any new evidence, argument, or witnesses, this information should be discussed as appropriate to ascertain whether it is relevant; might change the recommended determination; and, if so, what further investigation might be necessary prior to the issuance of findings.
4. During the closing conference, the investigator must inform Complainant/Respondent of his/her rights to object and request a hearing before the HLRB, as well as the time limitation for filing the appeal.
5. The investigator should also advise Complainant (or Respondent) that the decision at this stage is a recommendation subject to review and approval by higher management.
6. Where HIOSH anticipates issuing merit findings, the closing conference may be used to explore the possibility of settlement with Respondent.
7. Where Complainant (or Respondent) cannot be reached despite HIOSH’s reasonable attempts to conduct a closing conference, HIOSH will document its attempts to reach Complainant/Respondent in the file and proceed to issue a Determination Notice and Order. Reasonable attempts include attempting to contact Complainant through more than one method of communication (e.g., telephone and email), if Complainant has provided more than one form of contact information and allowing Complainant 48 hours to respond. In the case of phone calls, at least two attempts should be made at different hours of the day during allowed work-band hours.  HIOSH’s attempts to contact Complainant must be documented in the case file.
8. If Complainant becomes combative during the course of the closing conference, the investigator may end the conference. The investigator will document their attempt to hold a closing conference in the file and proceed to issue a Determination Notice and Order. Combativeness is not the simple questioning of the evidence and HIOSH’s determination. Combativeness includes cursing the investigator and making threats.

XVIII. Document Handling and Requests

1. Requests to Return Documents Upon Completion of the Case
   All documents received by HIOSH from the parties during the course of an investigation become part of the case file and will not be returned. At the beginning of the investigation, it is important to tell Complainants to keep originals of their documents because any documents they provide will not be returned. Encourage Complainant to only submit HIOSH-requested documents as well as those documents they believe HIOSH should consider.
2. Documents Containing Confidential Information
   If Complainant or Respondent submits documents containing confidential information, such as confidential business information of Respondent or information that reveals private information about employees other than Complainant, HIOSH must mark that information appropriately in the file, take care to avoid inadvertent disclosure of the information, and follow the procedures in Chapter 9 for evaluating whether the information may be disclosed either to the other party (under HIOSH’s Non-Public Disclosure policy) or in response to a UIPA request.
3. Witness Confidentiality
   Confidential witness statement must be clearly marked as “Confidential Witness Statement” in the file.
4. Medical Records – Handling and Storage of Medical Records in Whistleblower Case Files
   Ensure that medical records are handled in keeping with OSHA Instruction CPL 02-02-072, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records (or its successor), and 29 CFR 1913.10, Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records.  These instructions provide guidance to HIOSH personnel when accessing personally identifiable employee medical records.
   
   In rare instances where a case file includes medical information, the medical information must be password protected.  If stored on external media, the records must be encrypted and kept in a secure manner.  See OSHA Instruction CPL 02-03-009, Electronic Case File (ECF) System Procedures for the Whistleblower Protection Program.

---

1. HIOSH’s statute provides that 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. See HRS § 396-8(f). ↩︎