Anne Purcell, Associate General Counsel of the National Labor Relations Board (NLRB), recently issued an “Operations-Management” Memorandum on “Procedure in Cases Involving Potential OSHA and Wage and Hour Issues.” Memorandum OM 14-77 (August 8, 2014).
We had blogged earlier this year when the Occupational Safety and Health Administration (OSHA) Administrator, Dr. David Michaels, issued a Decision on Referring Untimely 11(c) Complainants to the National Labor Relations Board (Decision), OM-14-60 (May 21, 2014). That Decision directed that “OSHA will notify all complainants who file an untimely OSHA retaliation charge of their right to file an unfair labor practice charge over the same conduct with the NLRB.” Purcell noted that “conversely, there may be occasions during the processing of an NLRB charge where it would also be appropriate to apprise the charging party or a witness of his or her right to contact OSHA and/or the Wage and Hour Division (WHD) of the Department of Labor to discuss the filing of a complaint with those agencies.” Memorandum OM 14-77 therefore is intended to supplement OSHA’s OM 14-60, by outlining the circumstances of referrals and procedures that Board personnel should utilize in sending potential claimants to OSHA or the WHD.
The NLRB Memorandum directs that if the Region believes that an employer may have violated a substantive or anti-retaliation provision of the Occupational Safety and Health Act or the Fair Labor Standards Act (FLSA), the “Board agent should notify the charging party that he or she (or their representative) has the right to file a complaint with OSHA or WHD, respectively.” Emphasis added. The Memorandum is very helpful in this regard, spelling out for its staff:
WHD’s contact information can be found on the web at http://www.dol.gov/whd/america2.htm. Contact information for OSHA’s Regional Offices may be found online at https://www.osha.gov/html/RAmap.html. OSHA retaliation complaints may also be filed electronically at https://www.osha.gov/whistleblower/WBComplaint.html.
Board agents should invoke the procedures under this memorandum only where they believe that a possible violation of the OSH Act or the FLSA presents itself. To aid this analysis, quick reference guides for both statutes can be found on the OSHA website (entitled “OSHA At A Glance”) and on the WHD website (entitled “Basic Information”).
This top-down enhancement of NLRB’s enforcement programs and activities, pushing otherwise failed cases over to OSHA and the WHD for litigating, is something that employers should note. Again, when it’s over, it may not be over.