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A. General.
1.
Scope. This chapter sets forth guidelines for handling discrimination
complaints under Section 5-604 of the MOSH Act (the Act) and regulations
found at COMAR 09.12.20.05.
2.
Agency Policy. It is MOSH policy to make the agency as accessible as
possible to employees who have legitimate discrimination complaints.
3.
Time Limitations.
a.
Section 5-604(c)(2) of the Act requires that "an employee shall file
a complaint under this subsection within 30 days after the alleged
discrimination occurs."
b.
Section 5-604(d)(3) of the Act requires that "within 90 days after
the Commissioner receives a complaint, the Commissioner shall notify the
employee of the determination under this subsection."
4.
Program Administration.
a.
The MOSH Program Manager shall oversees the investigation
of discrimination complaints and recommends appropriate
dispositions to the Assistant Commissioner/Authorized Representative.
b.
The Office of the Attorney General (OAG), as counsel to the Assistant
Commissioner/Authorized Representative, provides legal assistance as
necessary to determine the validity of a discrimination complaint. The OAG
reviews all cases recommended for litigation before a final determination
is made, negotiates settlements, and litigates discrimination complaints.
5.
Responsibility of All MOSH Personnel.
a. MOSH
personnel shall have a general knowledge of the MOSH law, regulations and
procedures pertaining to discrimination cases and shall provide
information to businesses and employees upon request.
b.
MOSH Compliance personnel shall review the prohibitions and requirements
under Section 5-604 of the Act with each employer during the closing
conference.
c.
All MOSH personnel shall refer any discrimination complaints to the MOSH
Program Manager or their designee for prompt response.
B. Administrative Procedure.
1.
Filing of Complaint.
a.
Any employee or employee representative may initiate a discrimination
complaint.
b. A
discrimination complaint shall be in writing and shall include:
- the name, address,
and telephone number of the complainant
- the name, address,
and telephone number of the employer
- a brief
description of the discrimination alleged
- the date on which
the discrimination occurred
c. A
complaint alleging discrimination may be filed by mail or in person at any
MOSH office or by delivery to any MOSH employee.
d. A
MOSH employee receiving a discrimination complaint shall immediately
forward the complaint to the MOSH Program Manager.
2.
Initial Processing and Evaluation.
a.
Upon receipt of a discrimination complaint, the MOSH Program Manager shall
assign a case number and record the complaint in the discrimination log.
b.
The MOSH Program Manager shall assign a CO to complete an initial
screening of the complaint.
c. The initial
screening shall address and report on the following issues:
(1) Did
the complainant file the complaint within 30 days after the
occurrence of the alleged violation? If not, are there other
mitigating circumstances? See Section E, below.
(2) Did
the complainant engage in activity protected under Section
5-604 of the Act?
(3) If
MOSH does not have jurisdiction, should the complaint be
referred to another government agency?
NOTE: All
complaints under Section 405 of the Federal Surface
Transportation Assistance Act shall be referred to OSHA.
(4) Is
there an apparent relationship between the complainant's
protected activity and the employer's action?
(5) Did
the complainant suffer any loss as a result of action by the
employer against the employee?
(6) If
the complainant alleges discrimination for refusing to do
unsafe or unhealthful work:
(a) Did the employer
order the complainant to work under conditions the complainant reasonably
could have believed presented an imminent risk of death or serious bodily
injury?
(b) Did the
complainant have reason to believe that he or she could not seek or obtain
effective redress from the employer or from MOSH because there was not
sufficient time or opportunity, or for some other reason?
(7)
Based on the complainant's allegations, is there an apparent
prima facie case of discrimination?
d.
If, after consultation with the CO, the MOSH Program Manager determines
that a full investigation is not required, the MOSH Program Manager shall
report the CO's findings to the Assistant Commissioner/Authorized
Representative.
e. If
the Assistant Commissioner/Authorized Representative determines that no
further action is warranted, the Assistant Commissioner/Authorized
Representative shall notify the complainant in writing of the reasons for
the decision.
3.
Full Investigation. If the MOSH Program Manager determines that a full
investigation is warranted, the MOSH Program Manager shall:
a.
Advise the complainant and the employer that an investigation will be
conducted, and;
b.
Assign a CO to fully investigate the facts surrounding the complainant's
allegations of discrimination and prepare a report with recommendations.
4.
Report to the Assistant Commissioner/Authorized Representative. After
consultation with the CO, and if necessary the Office of the Attorney
General, the MOSH Program Manager shall forward the final report to the
Assistant Commissioner/Authorized Representative. The final report shall
include:
a. A summary of the
complainant’s allegation and employer’s response;
b. An overview of the
investigation; and
c. A recommendation
to either pursue litigation or dismiss the case.
5.
Determination. The Assistant Commissioner/Authorized Representative shall
determine whether or not the agency will file suit on behalf of the
complainant.
a. If
the Assistant Commissioner/Authorized Representative determines that
litigation is not appropriate, the Assistant Commissioner/Authorized
Representative shall give written notification of the determination to the
employer and complainant. The complainant will be informed of the reasons
for the decision. The employer will be told only that the investigation
has been completed and that no further action is planned by the agency.
b. If
the Assistant Commissioner/Authorized Representative determines to proceed
with litigation on behalf of the complainant, the Assistant
Commissioner/Authorized Representative shall notify the complainant and
the employer in writing and assign the case to the Office of the Attorney
General for appropriate action.
6.
Closing a Case. When the Assistant Commissioner/Authorized Representative
has made a final determination as to whether the complaint is appropriate
for litigation, the investigator shall close the case by making
appropriate entries on the log and completing the required data entry
forms. OSHA 87 forms shall only be completed for discrimination cases that
require full field investigation.
C. Investigation.
1. CO’s
Responsibility. Under the direction of the MOSH Program Manager, the CO
assigned a discrimination case is responsible for making a thorough
investigation of all aspects of the complaint.
2.
Focus of Investigation. Before beginning the investigation, the CO shall
identify the issues to be resolved, the facts to be determined and any
other relevant matters. The CO shall meet with the MOSH Program Manager if
clarity is needed in any of these areas.
3. Interview of
Complainant. Upon assignment of a complaint, the CO shall promptly contact
the complainant to:
a. Conduct a thorough
interview and prepare an initial report;
b. Obtain from the
complainant:
(1)
Written authorization to inspect and copy the complainant's
personnel records and medical records, if necessary for
the investigation;
(2) A
list of all persons, including company management, who may
have relevant information about the dispute; and
(3) Copies of
all documents, including written statements, letters,
reports, and pay receipts, that might be relevant; and
(4)
Determine if the complainant has filed a discrimination
complaint with Federal OSHA or with any other agency or is
pursuing any other form of relief.
(a)
If another agency, private or public, is currently attempting to resolve
the matter for the complainant, and if the successful result of that
process would result in the complainant being made whole, the Assistant
Commissioner/Authorized Representative may defer or postpone MOSH’s
investigation pending final outcome of the other matter.
4.
Full Investigation.
a. In
conducting a full investigation of a discrimination complaint, a CO shall:
(1)
Determine the complainant's allegations;
(2)
Seek corroboration of the complainant's allegations through
witnesses, documents and other evidence;
(3)
Determine the employer's response to the complainant's
allegations, including denial or affirmative defense;
(4)
Seek corroboration of the employer's assertions;
(5)
Discuss with the complainant all the evidence; and
(6)
If necessary, gather and corroborate any additional evidence
to resolve discrepancies or factual disputes.
b.
The CO shall review MOSH records to determine if there is a related safety
or health compliance case, injury or illness records, or other pertinent
information.
c.
The CO will advise the employer during the opening conference that any
serious hazard observed during the investigation may be addressed. If the
hazard is not abated during the course of the discrimination
investigation, the CO will refer the matter to MOSH Compliance for further
action.
d.
The CO shall interview all persons indicated by the complainant to have
knowledge of the circumstances surrounding the complaint, as well as any
other persons who may have relevant knowledge of the facts at issue.
(1)
In general, interviews will be conducted in private. If the
person to be interviewed is a management representative,
they may elect to have the employer or employer’s
representative present during the interview. The CO shall
clearly advise the interviewee of the right to a private
interview before they make that decision.
(2)
The CO shall attempt to obtain signed, written statements
from persons interviewed whenever possible.
e.
The CO shall maintain contact with the complainant throughout the
investigation, keeping the complainant apprised of the status of the
investigation and clarifying any facts in dispute.
f.
The CO shall carefully document all findings, preparing and retaining
accurate notes and other records of interviews, meetings, and telephone
conversations. Documentary evidence shall be copied and made part of the
file.
g. At
the conclusion of the investigation and prior to submitting a final
written report, the CO shall discuss with the complainant the information
obtained during the investigation, and solicit any new evidence, witnesses
or other information.
D.
Final Investigative Report. Upon completion of the investigation,
the CO shall complete a final report. That report will contain:
1.
The date the complaint was filed;
2.
The name, address and telephone number of the complainant;
3.
The name, address and telephone number of any individual or group
representing the complainant;
4.
The legal name, address and telephone number of the respondent (employer),
as well as the number of employees and appropriate "SIC Code";
5.
The name, address and telephone number of any individual or group
representing the respondent;
6. A
brief statement summarizing the complainant's allegation;
7. A
brief statement summarizing the respondent’s defense;
8.
Union information, including whether the complainant has filed a
grievance;
9.
The name, address, and telephone number of each witness interviewed, as
well as other potential witnesses who were not interviewed. Indicate why
each potential witness was not interviewed;
10. A
chronological narrative of the investigative finding, including the
complainant’s response to the employer’s defense and the investigative
findings;
11. A
brief summary of the CO’s recommendation, including any
information that might be useful in reaching a settlement of the
case.
E.
Timely Filing of a Complaint. If there is a question about whether
the complaint was filed within 30 days of the discriminatory event,
the CO conducting the investigation shall report all relevant
circumstances and facts, fully documented. Such circumstances may
include:
1.
Whether the employer misled the employee regarding the grounds for
discharge or other adverse action, or concealed information from the
employee;
2.
Whether the employee has resorted in good faith to grievance arbitration
proceedings under a collective bargaining agreement;
3.
Whether the employee has filed a complaint regarding the same general
issue with another agency, a court, or elected representative;
4.
Whether the discrimination is of a continuing nature;
5.
Whether the employee made reasonable efforts to file a timely complaint,
but was unable to contact an agency representative or received erroneous
information from the agency;
6.
Whether the employee was unable to file a timely complaint due to illness,
injury, disaster, or some other occurrence.
F. Settlement.
1.
Upon request of the Assistant Commissioner/Authorized Representative and
with the consent of the complainant, the Office of the Attorney General (OAG)
may enter into settlement negotiations during the course of a
discrimination case.
2. In
negotiating on behalf of the complainant, the OAG shall make every effort
to obtain full relief for the complainant, including reinstatement, back
pay, expungement of personnel records, restitution of wages and other
benefits, and posting of a notice to all employees of the settlement
agreement. In the case of egregious complaints, the OAG may seek punitive
and/or compensatory damages.
3.
The OAG shall submit all proposed settlement agreements to the Assistant
Commissioner/Authorized Representative for approval. The proposal shall
indicate the position of all parties with respect to the proposed
agreement, and the OAG's recommendations.
4. If
a proposed settlement agreement includes restitution for back pay, with or
without interest, the proposal shall indicate the specific amount at
issue.
5.
If, during the course of the investigation, the CO feels that a settlement
can be reached, the CO will so advise the MOSH Program Manager. At the
MOSH Program Manager’s discretion, the CO may then proceed to negotiate
an informal (quick) settlement in the matter. The settlement must be
agreed upon, in writing, by both the complainant and the respondent.
Before becoming final, the settlement must be accepted and signed by the
Assistant Commissioner/Authorized Representative.
G.
Withdrawal of Complaint. A complainant may submit to the Assistant
Commissioner/Authorized Representative a request for permission to
withdraw a discrimination complaint. The request will be honored only
if the Assistant Commissioner/Authorized Representative is satisfied
that the request is made voluntarily and with knowledge of the
possible implications. The case file will contain documentation of all
facts relevant to the decision to permit a complaint to be withdrawn.
H.
Release of Investigation Information. Requests for access to
information, statements, records, documents, and other evidence
obtained during investigation of a discrimination complaint will be
handled in accordance with the Maryland Public Information Act and the
regulations adopted pursuant to that Act.
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