Chapter 8 – OSHA’s Role in HIOSH Whistleblower Cases

I. Scope

The purpose of this chapter is to describe the procedures for the coordination of cases involving section 11(c) and HIOSH enforcement of HRS § 396-8(e). An explanation of the substantive and procedural provisions of section 11(c) can be found in the section 11(c) desk aid. The other chapters of this manual provide guidance on the investigation of HIOSH whistleblower cases and making determinations in those cases.

Regulations pertaining to federal OSHA’s administration of section 11(c) of the OSH Act are contained in 29 CFR Part 1977. The regulations most pertinent to Federal-State coordination on occupational safety or health retaliation cases are at 29 CFR 1977.18 (arbitration or other agency proceedings) and 29 CFR 1977.23 (State Plans).

II. Relationship to OSHA

1. General
   Section 18 of the Occupational Safety and Health Act of 1970 (“OSH Act”), 29 U.S.C. §667, provides that any State¹ wishing to assume responsibility for development and enforcement of occupational safety and health standards must submit to the Secretary of Labor a State Plan for the development of such standards and their enforcement. Approval of a State Plan under Section 18, does not affect the Secretary of Labor’s authority to investigate and enforce Section 11(c) of the Act in any State, although 29 CFR 1977.23 and 1902.4(c)(2)(v) require that each State Plan include a whistleblower provision as effective as OSHA’s Section 11(c) (“section 11(c) analog”). Therefore, in State Plans that cover the private sector, employees may file occupational safety and health whistleblower complaints with federal OSHA, the State Plan, or both.
2. State Plan Coverage
   The Hawaii State Plan covers both state and local government employees, as well as most private sector workers, with the exception of those in maritime employment and contractors working on federal property, such as Hawaii’s national parks, military installations, and contractors engaged in United States Postal Service mail operations.
3. Overview of the 11(c) Referral Policy
   Under 29 CFR 1977.23 OSHA may refer section 11(c) complaints to HIOSH. It is OSHA’s long-standing policy to refer section 11(c) complaints to HIOSH for investigation. Thus, rarely do both federal OSHA and HIOSH investigate a complaint.
4. Exemption to the Referral Policy
   Utilizing federal whistleblower protection enforcement authority in some unique situations is appropriate.  Examples of such situations are summarized below:
   1. Multi Statute Complaint: If federal OSHA receives a complaint that is covered by section 11(c) and another OSHA whistleblower statute, federal OSHA will not refer the case to HIOSH. However, federal OSHA should notify HIOSH that it has received the complaint and will be conducting the investigation.
      
      However, if the occupational safety or health retaliation portion of the complaint is untimely under section 11(c) but timely under HIOSH, OSHA will split the case and refer that portion to HIOSH. OSHA will continue its investigation under the other statute(s).
   2. Exceptions to HIOSH Coverage: HIOSH has carved out exceptions to its coverage, and in these areas federal OSHA retains coverage of both safety and health complaints and section 11(c) complaints. Such areas include complaints from: employees of USPS, employees of contractor-operated facilities engaged in USPS mail operations, employees working in workplaces on federal enclaves where the state has not retained authority, maritime employees not covered by HIOSH (generally, longshoremen, shipyard workers, marine terminal workers, and seamen), and employees working in aircraft cabins in flight (as defined by the FAA Policy Statement). Complaints from such employees received by federal OSHA will not be referred to HIOSH. For details about the areas of State Plan coverage, see each State Plan’s webpage at: https://www.osha.gov/.
   3. Multi-State Contacts: When federal OSHA encounters a section 11(c) case with multi-state contacts and one or more of the states is HIOSH, it is best to avoid the complexities HIOSH may face in attempting to cover the case. For example, if the unsafe conditions which the employee complained about are not within HIOSH jurisdiction, HIOSH may have a coverage problem. Another problem relates to the possible inability of the HIOSH to serve process on the employer because the employer is headquartered in another state; this may often happen with construction businesses. The nation-wide applicability of section 11(c) solves these problems. Federal OSHA must take such cases and should communicate with HIOSH when it does so.
   4. Inadequate Enforcement of Whistleblower Protections: When federal OSHA receives a section 11(c) complaint concerning an employee covered by a State Plan, the Regional Administrator (RA) may determine, based on monitoring findings or legislative or judicial actions, that a State Plan does not adequately enforce whistleblower protections or fails to provide protection equivalent to that provided by federal OSHA policies, e.g., a State Plan does not protect internal complaints. In such situations, the RA may elect to process private-sector section 11(c) complaints from employees covered by the affected State Plan in accordance with procedures in non-plan states.
5. Referral Procedures: Complaints Received by Federal OSHA
   In general, all federally filed complaints alleging retaliation for occupational safety or heath activity under HIOSH’s authority, i.e., complaints by private-sector state and local government employees, will be referred to HIOSH for investigation, a determination on the merits, and the pursuit of a remedy if appropriate. Generally, the complaint shall be referred to the State Plan where Complainant’s workplace is located. The federal OSHA referral is a filing of the complaint with HIOSH. The referral must be made promptly, preferably by e-mail, fax, or expedited delivery. It should be made within HIOSH’s filing period if possible. The administratively closed federal case file will include a copy of the complaint, the referral email (or letter) to HIOSH, and the OIS-Whistleblower case summary.
   1. Referral of Private-Sector Complaints
      A private-sector employee may file an occupational safety and health whistleblower complaint with federal OSHA under Section 11(c) and with HIOSH.  Except as otherwise provided, when such a complaint is received by federal OSHA, the complaint will be administratively closed as a federal section 11(c) complaint. The date of the filing with federal OSHA will be recorded in OIS-Whistleblower. The case will then be referred to the State Plan, generally where Complainant’s workplace is located, for handling.
      
      Complaints that on their face implicate only section 11(c) and HIOSH’s section 11(c) analog (HRS § 396-8(e)) should be immediately referred to HIOSH. The requirement of a screening interview is waived with such complaints.
      
      The complaint will be referred to HIOSH for screening and, if the complaint was timely filed with federal OSHA, the OSHA Regional Office will consider the complaint dually filed so that the complaint can be acted upon under the federal review procedures, if needed.
   2. Referral of Public Sector Complaints
      ll occupational safety and health whistleblower complaints (i.e., section 11(c) complaints) from state and local government employees will be administratively closed for lack of federal authority and referred to HIOSH. If the complaint falls under both section 11(c) as well as an OSHA whistleblower statute covering public-sector employees, such as NTSSA and AHERA, OSHA will refer the section 11(c) portion to HIOSH, if one exists, while continuing to process/investigate the component of the complaint falling under the other statute.
   3. Filing Periods in HIOSH
      As of the date of this publication, the period to file a whistleblower complaint with HIOSH, as established by statute is 60 days. Please refer to the other individual State Plan statutes for current filing periods and potential extensions.
6. Procedures for Complaints Received by HIOSH
   In general, a section 11(c) analog complaint received directly from a Complainant by HIOSH will be investigated by HIOSH and will not be referred to federal OSHA, unless it falls under one of the exceptions to State Plan coverage as stated above. HIOSH may not request federal OSHA to handle a section 11(c) case after the expiration of the section 11(c) filing period if the complaint was not timely dually filed by Complainant with federal OSHA.
   1. Notifying Complainants of Right to File Federal Section 11(c) Complaint
      Because employers in HIOSH jurisdiction do not use the federal OSHA poster, HIOSH must advise private-sector Complainants of their right to file a federal section 11(c) complaint within the 30-day statutory filing period if they wish to maintain their rights to federal protection. This may be accomplished through such means as the following language in the letter of acknowledgment or a handout sent or given to Complainant:
      
      If you are or were employed in the private sector, you may also file a retaliation complaint under section 11(c) of the federal Occupational Safety and Health Act. In order to do this, you must file your complaint with the U.S. Department of Labor – OSHA within thirty (30) days of receiving notice of the retaliatory act. If you do not file a retaliation complaint with OSHA within the specified time, you will waive your rights under federal OSHA’s section 11(c). Although OSHA will not conduct an investigation while HIOSH is handling the case, filing a federal complaint allows you to request a federal review of your retaliation claim if you are dissatisfied with the state’s final determination. A final determination is a final decision of the investigating office or a decision of a tribunal (e.g. HLRB, the Hawaii Intermediate Court of Appeals, or the Hawaii Supreme Court), whichever comes later. As part of the federal review, OSHA may conduct further investigation. If the U.S. Labor Department (DOL) finds merit, DOL may file suit in federal district court to obtain relief. To file such a complaint, contact the OSHA Regional Office indicated below:…
   2. Notification of Federal Review Option at Conclusion of State Plan Investigation
      At the conclusion of each whistleblower investigation, HIOSH must notify Complainant of the determination in writing and inform them of the process for requesting review by the state. If a timely complaint was also filed with federal OSHA, the determination letter should inform Complainant as follows:
      
      Should you disagree with the outcome of the investigation, you may request a federal review of your retaliation claim under section 11(c) of the OSH Act.Such a request may only be made after a final determination has been made by the state investigation office after exercise of the right to appeal the state’s determination or a final decision of a tribunal (e.g. HLRB, the Hawaii Intermediate Court of Appeals, or the Hawaii Supreme Court) whichever comes later. The request for federal review must be made in writing to the OSHA Regional Office indicated below and postmarked within 15 calendar days after your receipt of this final decision. If you do not request a federal review in writing within the 15 calendar-day period, you will have waived your right to a federal review.
   3. Federal Whistleblower Statutes Other than Section 11(c) 
   4. OSHA expects that, where applicable, HIOSH will make Complainants aware of their rights under the federal whistleblower protection statutes (other than section 11(c)) enforced by federal OSHA, which protect activity dealing with other federal agencies and which remain under federal OSHA’s exclusive authority. For information on Complainants’ rights under other federal whistleblower statutes enforced by federal OSHA, go to https://www.whistleblowers.gov/statutes
7. Properly Dually Filed Complaint
   A properly dually filed complaint is:
   • an occupational safety or health whistleblower complaint filed with federal OSHA and HIOSH within the respective filing periods of both entities, or 
   • an occupational safety or health whistleblower complaint that was timely filed with federal OSHA, and federal OSHA has referred the complaint to HIOSH.
8. Activating Properly Dually Filed Complaints
   Complainants who have concerns about HIOSH’s investigation of their whistleblower complaints may request federal review of the HIOSH investigation. Such a request may only be made after any right to appeal has been exercised through HLRB and further through the state’s court system. A final decision is either one reached by the investigating office or a decision of a tribunal (e.g. HLRB, Hawaii Intermediate Court of Appeals, or Hawaii Supreme Court), whichever comes later.  
   
   The request for a federal review must be made in writing to the OSHA Regional Office and postmarked within 15 calendar days after receipt of the state’s final decision.  If the request for federal review is not timely filed, the federal section 11(c) case will remain administratively closed.

III. Federal Review Procedures

A federal review is the review by OSHA of HIOSH’s case file of a dually filed complaint after Complainant has met the criteria below in section A. As part of the review, a case may be sent back to the state so that the state may attempt to correct any deficiencies. If, after the federal review of the HIOSH case file, federal OSHA determines that the state’s proceedings met the criteria listed below in section C, it may simply defer to the state’s findings (see section D below). Alternatively, if federal OSHA determines that the state’s investigation was inadequate or that the Complainant’s rights were not protected in any other way, federal OSHA will conduct a full investigation (see section E below). 

1. Complainants Request for Federal Review
   If Complainant requests federal review of their occupational safety or health retaliation case after receiving HIOSH’s final determination, federal OSHA will first determine whether the case meets all of the following criteria:
   1. Confirm that the complaint is, in fact, a dually filed complaint. That is: Complainant filed the complaint with federal OSHA in a timely manner. Complaints submitted through the OSHA Online Complaint form are considered filed with federal OSHA.
   2.  A final determination has been made by the state. A final determination is a final decision of the investigative office after a review of an initial determination or a final decision of a tribunal, such the HLRB, the Hawaii Intermediate Court of Appeals, or the Hawaii Supreme Court.
   3. Complainant makes a request for federal review of the complaint to the Regional Office, in writing, that is postmarked within 15 calendar days of receiving the state’s final determination; and
   4. Complaint is covered under section 11(c).
2. Complaints Not meeting Federal Procedural Requirements for Review
   1. If upon request for federal review, the case does not meet the prerequisites for review, Complainant will be notified in writing that no right for review by OSHA will be available. In that notification, Complainant will be informed of the right to file a Complaint About State Program Administration (CASPA),which may initiate an investigation of HIOSH’s handling of the case, but not a section 11(c) investigation and, therefore, will not afford individual relief to Complainant.  
   2. If Complainant requests federal review before the state’s final determination is made, Complainant will be notified that they may request federal review only after the state has made a final determination in the case and exhausted all appeals through the state’s court system.  However, in cases of a delay of one year or more after the filing of the complaint with federal OSHA or misfeasance by the state, the supervisor may allow a federal review before the issuance of a state’s final determination.
3. Federal Review
   The OSHA federal review will be conducted as follows:
   • Under the basic principles of 29 CFR 1977.18(c), in order to defer to the results of the state’s proceedings, it must be clear that:
     1. The state proceedings “dealt adequately with all factual issues;” and
     2. The state proceedings were “fair, regular and free of procedural infirmities;” and
     3. The outcome of the proceeding was not “repugnant to the purpose and policy of the Act.”
        
        The federal review will entail a scrutiny of all available information, including HIOSH’s investigative file. OSHA may not defer to the state’s determination without considering the adequacy of the investigative findings, analysis, procedures, and outcome. If appropriate, as part of the review, OSHA may request that the case be reopened and the specific deficiencies be corrected by HIOSH.
4. Deferral
   If HIOSH’s proceedings meet the criteria above, federal OSHA may simply defer to the state’s findings. Complainant will be notified and requests for review by the Directorate of the Whistleblower Protection Programs (DWPP) will not be available.  The closing notification will use both federal OSHA’s existing, administratively closed case number and HIOSH’s case number in its subject heading. Federal OSHA shall copy Respondent on the closing notification. Federal OSHA will note the federal review and the deferral in the original, preexisting federal OSHA OIS-Whistleblower entry. No new case will be opened or new entry added into OIS-Whistleblower.
5. No Deferral/New Investigation
   Should state correction be inadequate and/or the supervisor determines that OSHA cannot properly defer to the state’s determination pursuant to 29 CFR 1977.18(c), the supervisor will order whatever additional investigation is necessary. The Region will docket the complaint in OIS-Whistleblower. The legal filing date remains the original filing date. However, instead of reopening the original complaint in OIS-Whistleblower, the investigator will open a new case in the database, using as the filing date for OIS-Whistleblower the date on which federal OSHA decided to conduct a section 11(c) investigation.  The investigator will note and cross reference the cases in the tracking text of both the original and new case database entries. The case will be investigated as quickly as possible.  Based on the investigation’s findings, the supervisor may dismiss, settle, or recommend litigation. If there is a dismissal, Complainants have the right to request a review as outlined above.

IV. State Plan Evaluation

If the federal section 11(c) review reveals issues regarding state investigation techniques, policies, and procedures, recommendations will be referred to the RA for use in the overall State Plan evaluation and monitoring.

1. CASPA Procedures
   1. OSHA’s State Plan monitoring policies and procedures provide that anyone alleging inadequacies or other problems in the administration of HIOSH’s State Plan Program may file a Complaint About State Program Administration (CASPA).
   2. A CASPA is an oral or written complaint about some aspect of the operation or administration of a State Plan made to OSHA by any person or group. A CASPA about a specific case may be filed only after HIOSH has made a final determination, as defined above.
   3.  Because properly dually filed 11(c) complaints may undergo federal review under the section 11(c) procedures, no duplicative CASPA investigation is required for such complaints. If a private-sector retaliation complaint was not dually filed, it is not subject to federal review under section 11(c) procedures and is only entitled to a CASPA review. Complaints about the handling of HIOSH whistleblower investigations from state and local government employees will be considered under CASPA procedures only.
   4. Upon receipt of a CASPA complaint relating to HIOSH’s handling of a whistleblower case, federal OSHA will review HIOSH’s investigative file and conduct other inquiries as necessary to determine if HIOSH’s investigation was adequate and whether the handling of the case was in accordance with HRS § 396-8(e) and supported by appropriate available evidence. A review of the file will be completed to determine if the investigation met the basic requirements outlined in the policies and procedures of the HIOSH’s Whistleblower Protection Program. The review should be completed within 60 days to allow time to finalize and send letters to HIOSH and Complainant within the required 90 days.
   5. A CASPA investigation of a whistleblower complaint may result in recommendations with regard to specific findings in the case as well as future HIOSH investigations techniques, policies, and procedures. A CASPA will not be reviewed under the OSHA request for federal review process. If the OSHA Regional Office finds that the outcome in a HIOSH whistleblower case is not appropriate (i.e., final state action is contrary to federal practice and is less protective than a federal action would have been; does not follow state law, policies, and procedures; or state law, policies, or procedures are not at least as effective as OSHA’s), HIOSH, within state statutes, will attempt to correct the outcome, and, whenever possible, make changes to prevent recurrence. However, HIOSH cannot legally reopen a case once a DNO becomes a final order by statute, unless ordered to do so by the HLRB. If there is a deficiency in the state statute, and the Regional Administrator along with the Directorate of Cooperative and State Programs has requested that HIOSH recommend legislative changes, HIOSH will take this into consideration. 

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1. Under the OSH Act the term “State” includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, and Guam.  29 U.S.C. § 652(7). Pursuant to the Covenant to establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Article V, section 502(a), as contained in Pub. L. 94-24, 90 Stat. 263 (Mar. 24, 1976) [citations to amendments omitted], generally applicable laws applicable to Guam apply to the Northern Marianas as they do to Guam.  Therefore, the Commonwealth of the Northern Mariana Islands is also a “State” under the OSH Act.  ↩︎