OSHA and the National Labor Relations Board (NLRB) have reached an agreement where OSHA will now refer untimely retaliation claims from its Whistleblower Division to the NLRB for review. An OSHA Memorandum from Assistant Secretary of Labor for OSHA, Dr. David Michaels provides greater detail on the inter-agency referral system. Under OSHA’s whistleblower provisions, employees have 30 days to file a complaint for employer retaliation. The NLRB, on the other hand, provides employees six months to file complaints regarding unfair labor practices. Because in OSHA’s and the NLRB’s view retaliation can be considered an unfair labor practice, the agencies’ agreement effectively circumvents OSHA’s 30 day statute of limitations and prolongs the life of employees’ stale whistleblower claims.
Section 11(c) of the OSH Act generally prohibits any type of employer discrimination against employees who report workplace safety violations or assert any other right afforded by the OSH Act. When a discriminatory act in violation of Section 11(c) occurs, an employee may file a complaint alleging retaliation with OSHA’s Whistleblower Division. The Division then investigates the complaint to determine if it has any merit. The complaint, however, must be filed within 30 days from the retaliatory act. OSHA and the NLRB claim that 300-600 whistleblower complaints are dismissed each year for missing the mandatory 30-day filing deadline. The agencies further claim that a third of these claims miss the filing deadline by a month or less.
The NLRB, however, provides employees significantly more time to report grievances under the National Labor Relations Act (NLRA). According to Section 8 of the NLRA, employers are prohibited from restraining or coercing employees in the exercise of their rights to “engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Whereas employees have 30 days to file a whistleblower complaint with OSHA, they have six months to file an unfair labor practices claim with the NLRB.
For this reason, OSHA will now refer employees with untimely whistleblower complaints to the NLRB so that they can potentially file a timely unfair labor practices claim. According to OSHA, the 300-600 stale OSHA whistleblower claims may still fall under the NLRB’s jurisdiction because they could involve “concerted activity” and therefore a potential unfair labor practice. As the OSHA Memorandum states, “many employee safety activities involve concerted activity protected under the NLRA and therefore may be protected under both Acts.” In OSHA’s opinion then, the whistleblower claims (re-classified as an unfair labor practices claim) could therefore still be actionable under the NLRA’s six month statute of limitations.
How the Referrals Will Work
According to the OSHA Decision, when a whistleblower complaint is untimely filed, OSHA personnel will still address the employee’s rights under Section 11(c) of the OSH Act (to the extent they are still actionable). However, personnel must then “advise the complainant that [he] may file a charge with the NLRB and that the NLRB time limit to file (6 months) is longer than OSHA’s (1 month) and therefore OSHA recommends that the complainant contact the NLRB as soon as possible to discuss his or her rights.” OSHA personnel will then provide the employee with the contact information for the appropriate NLRB Field Office. OSHA will also send the complainant a closing letter that similarly instructs employees to contact the NLRB about a potential unfair labor practices claim.
Employers should be aware of the expanded time frame that employees now have to file whistleblower complaints. Since hundreds of Section 11(c) complaints are screened out or dismissed each year due to untimely filing, employers should expect an increase in NLRB investigations for unfair labor practices.