During a Senate subcommittee hearing on whistleblowing last month, Occupational Safety and Health Administration (OSHA) Assistant Secretary David Michaels lamented the relatively short 30-day statute of limitations for filing a whistleblower claim under section 11(c) of the OSH Act. According to Michaels, the agency dismisses hundreds of merit cases each year solely on the statute of limitations issue. His oral and written testimony suggested a number of ways to give teeth to what he claimed was the most widely-used whistleblower statute. One suggestion he did not make during the hearing – which is now in operation – is a claim referral program with the National Labor Relations Board (Board).
On May 21, the Board’s General Counsel issued a memorandum announcing the new cooperative endeavor. Under this program, OSHA intake investigators will “notify all complainants who file an untimely whistleblower charge of their right to file a charge with the NLRB.” According to the memorandum, whistleblower charges alleging violations of OSH Act section 11(c) “may also raise claims arising under the National Labor Relations Act; for example, instances of employer retaliation for group complaints concerning unsafe working conditions. These complaints may still be timely under our six-month statute of limitations.” OSHA has sent its intake personnel a template notification letter to provide to untimely section 11(c) claim filers whose cases will be administratively closed, as well as in-person or telephone conversation talking points to help explain a complainant’s rights and options for filing a charge with the Board.
The end result of this process is that employers can anticipate a rise in unfair labor practice charges that ordinarily would have been dismissed as untimely filed OSH Act whistleblower complaints.