The Occupational Safety and Health Administration (OSHA) is an arm of the U.S. Department of Labor, and is the federal agency charged with the enforcement of legislation related to the health and safety of workers.
OSHA’s primary enforcement tool is the Occupational Safety and Health Act of 1970 (OSH Act). Section 11(c) of the OSH Act provides that:
“no person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.”
An employee who believes him- or herself to have been retaliated against under Section 11(c) of the OSH Act has 30 days after the alleged adverse action within which to file a charge with OSHA. According to OSHA, hundreds of such complaints are dismissed each year because the complainant has failed to file a timely charge.
The National Labor Relations Board (NLRB) is an independent agency of the U.S. government charged with investigating and remedying unfair labor practices.
Section 7 of the National Labor Relations Act (NLRA) provides the right to employees to “engage in concerted activities” for “mutual aid or protection.” Section 8 of the NLRA prohibits “unfair labor practices,” and allows an employee who feels that he or she has been adversely treated after engaging in protected concerted activity to file a charge within 180 days of the alleged adverse treatment.
In 1975, a Memorandum of Understanding (MOU) was signed by OSHA and the NLRB which outlined procedures for handling worker safety retaliation complaint filed with one or both agencies. That MOU provided that where a complaint was filed with both agencies, enforcement actions would be taken primarily by OSHA.
Since that MOU, the number of Section 11(c) complaints has continued to rise, and more and more of those complaints are being filed outside of the OSH Act’s 30-day limitation period.
In March of this year, the Acting Director of OSHA’s Directorate of Whistleblower Protection Programs raised the issue of untimely 11(c) complaints, pointing out the overlap between those complaints and NLRB Section 8 issues. Based on that overlap, he suggesting that OSHA refer complainants who have filed untimely OSH Act retaliation/whistleblower complaints under Section 11(c) to the NLRB, under that agency’s 180-day time limitation.
On May 22, 2014, an agreement was reached between the two entities in which OSHA agreed to advise all complainants who have filed or attempted to file an untimely Section 11(c) retaliation charge to contact the NLRB to inquire about filing an unfair labor practice charge under Section 8 of the NLRA.
The agreed-upon policy requires OSHA personnel to first discuss with the complainant his or her rights under Section 11(c) of the OSH Act, and make that employee aware of the fact that the untimely complaint will be screened out or dismissed.
After that, OSHA will advise the complainant of the right to file a charge with the NLRB, and of that agency’s 180-day time limit. Contact information will be provided regarding the appropriate NLRB field office. Closure letters for untimely OSHA complaints also will include this information.
It is of interest that while only claims regarding safety-related “concerted” activity actually are appropriate for referral to the NLRB, this resource-sharing agreement applies to all untimely retaliation claims to OSHA. However, given the nature of most safety-related issues, and the fact that they rarely apply to only one employee, it seems likely that the NLRB is going to view most, if not all, safety-related retaliation issues as precluding the banding together of employees and, therefore a potential violation of Section 8 of the NLRA. Another important point is that the protections offered by this arrangement apply to both unionized and non-unionized employers.
While this arrangement ostensibly was instigated by OSHA, it is another in a pattern of actions that has broadened the presence and effect of the NLRB in employment discrimination and retaliation issues.
According to John Artz, a Pittsburgh shareholder and member of Ogletree’s Workplace Safety & Health Practice Group, “As has already become apparent by its activism in other arenas, this Administration is toiling diligently for workers. We continue to see a greater emphasis on workplace safety enforcement with a more adversarial focus. What this agreement with the NLRB means is that even if OSHA dismisses a complaint as untimely filed, the issue may not really be over if the longer limitations period of the NLRA breathes new life into it.”