On May 21st, the NLRB announced a joint referral agreement with the Occupational Safety and Health Administration (“OSHA”) under which OSHA will refer time barred complaints under the Occupational Safety and Health Act to the NLRB. This agreement marks the NLRB’s latest tactic to expand its ever growing authority. Accordingly, employers should expect an increase in claims brought under the NLRA.
Section 11(c) of the Occupational Safety and Health Act protects whistleblowers from retaliation from their employers. Currently however, employees have only 30 days from the time of the violation to file a complaint with OSHA - after the 30 days their claim is unactionable as time barred. The new joint referral agreement between OSHA and the NLRB is significant because OSHA will begin to refer all untimely complaints to the NLRB, many of which, the organizations believe, will also constitute violations under the NLRA, which prohibits employer infringement on an employee’s ability to engage in “protected concerted activity.” Because the NLRA has a statute of limitations of 6 months, many of the claims that are not actionable under the OSH Act will still be actionable under the NLRA. An OSHA chief recently estimated that roughly 200 OSHA claims every year are dismissed as untimely because they are filed after the 30 day statute of limitations. If the agreement works as planned, many of these claims will be brought under the NLRA.
As always, Kelley Drye is ready to assist any of its clients with claims brought under the NLRA or OSHA.