Why it matters: A new cooperative endeavor between the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) could result in an increase in charges filed against employers. A few months ago, an OSHA representative testified before a Senate subcommittee and bemoaned the 30-day statute of limitations for filing a whistleblower claim under the Occupational Safety and Health (OSH) Act. Less than one month later, the Board issued a memo announcing the new agreement. Now when OSHA notifies complainants that their whistleblower charge is untimely, the agency will also provide information about the right to file a charge with the NLRB and the potential to raise claims under the National Labor Relations Act (NLRA). Employers should take note – the program has already begun.

Detailed Discussion

On April 29, the Senate Subcommittee on Employment and Workplace Safety held a hearing entitled “Workers’ Memorial Day: Are Existing Privacy Sector Whistleblower Protections Adequate to Ensure Safe Workplaces?” As one of five witnesses, assistant secretary for OSHA Dr. David Michaels testified that the OSH Act “is badly in need of modernization” to better protect workers.

While other whistleblower statutes have been beefed up in recent years, Section 11(c) of the OSH Act has not. One example: the 30-day statute of limitations period in which employees can file a claim. Michaels estimated that the agency rejects hundreds of cases each year solely because they are untimely. As part of his testimony, Michaels made several recommendations to modernize the law, including an extension of the time limit.

Less than one month later, OSHA and the NLRB announced an alternative that doesn’t require the agencies to engage in the rulemaking process or an amendment to the statute: a claim referral program between the agencies.

In a memorandum issued through OSHA from the Office of the Solicitor and Directorate of Whistleblower Protection Programs, the agency noted that many employee safety activities involve concerted activity protected under the NLRA, like employer retaliation for group complaints concerning unsafe working conditions.

The new policy established that “OSHA personnel will advise all complainants who have filed, or attempted to file, an untimely Section 11(c) complaint to also contact the NLRB to inquire about filing a charge alleging unfair labor practices.” OSHA personnel “will then advise complainants regarding their ability to contact the NLRB,” explaining that “they may file a charge” and the NLRB has a six-month time limit in which to file, recommending “that the complainant contact the NLRB as soon as possible to discuss his or her rights.”

To implement the program, OSHA intake personnel were provided with a sample notification letter for complainants whose Section 11(c) claims were untimely as well as talking points for a telephone or face-to-face conversation to explain the referral.

A memorandum from the NLRB’s Office of the General Counsel to all regions confirmed the program, noting that the agency plans to track the number of contacts received and charges docketed as a result of OSHA referrals.

For more information on the Subcommittee hearing or to watch testimony, click here

To read OSHA’s memorandum, click here.

To read the Board’s memorandum, click here.