Employers Beware: OSHA and NLRB Collaborating Together
On May 21, 2014, the National Relations Board (“NLRB”) Associate General Counsel issued a memorandum to all regional directors, officers-in-charge and resident officers announcing the implementation of a joint program between Occupational Safety and Health Administration (“OSHA”) and the NLRB for referral of untimely filed whistleblower claims by OSHA to the NLRB. The statute of limitations to file a complaint with OSHA is just 30 days from the date of occurrence, whereas employees have 6 months from the date of occurrence to file unfair labor practice charges against their employers with the Board.
The kicker here is that because the NLRB is responsible for enforcing employee rights under the National Labor Relations Act (NLRA), and the NLRA protects employees’ rights to act together to try and improve working conditions including safety and health, it doesn’t matter whether the employees are in a union.
What this drills down to in layman’s terms is that if your employee fails to file a complaint against you under the OSH Act for some perceived safety or health violation within 30 days of it occurring at your workplace, he or she has up to 6 months to do the same with the NLRB terming it then as an “unfair labor practice”.
And, to take matters further, the new program between OSHA and the NLRB provides that OSHA agents will tell those employees filing untimely complaints with OSHA that they can instead file the complaint as an unfair labor practice charge with the NLRB, which will then be timely. OSHA personnel are even supplied with talking points so as to advertise the NLRB and give specific contact information to complainants to make it that much easier to pass along and ensure that an untimely OSHA complaint becomes a timely NLRB one.
While the agreement between OSHA and NLRB does not necessarily provide a second chance for lodging safety and health-related complaints, it does solicit and encourage employees to pursue alternative avenues of filing legal actions against their employers – avenues that employees would not have necessarily known are available in non-union environments.
What does this mean for employers? Without a doubt, employers who have never heard of the NLRB may start hearing the terms “unfair labor practice” a lot more frequently. Employers who are unfamiliar with the NLRA, especially those who are frequently subjected to OSHA whistleblower complaints, should start to become familiar with the law and always keep solid workplace health and safety programs in place to further protect themselves from this most recent collaboration between the two enforcement agencies.
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