Before we discuss the topic for today’s post let me provide you with some explanation about the two agencies named in the title, just in case not everyone is on the same page. OSHA stands for the Occupational Safety and Health Administration, a division of the U.S. Department of Labor that is charged with overseeing the Occupational Safety and Health Act. The OSH Act encompasses a large about of safety regulations that are designed to provide for the safety and well-being of workers. The NLRB is the National Labor Relations Board, an separate agency of the government created in 1935 to oversee the provisions of the National Labor Relations Act that provided to employees (with some exclusions) the right to engage in “protected concerted activity” for “mutual aid and protection”, i.e., form a union or to resist the formation of a union.
OSHA and Retaliation
Under the OSH Act employees have the right to file a complaint about a situation they feel is unsafe and may endanger their life. On occasion their employer may not agree with them and are subsequently upset that the employee has filed a complaint. As a result they my discipline or terminate that employee. That is one of the reasons an anonymous complaint process is in place. Regardless of whether the employee is known or not they are protected by a provision in the law that says that retaliation is against the law and employers can be held liable for their retaliation. Their website specifically says “It is against the law for an employer to fire, demote, transfer, or discriminate in any way against a worker for filing a complaint or using other OSHA rights.”
OSHA investigates so much retaliation that they also have been deemed to be the arm of the government that also investigates retaliation complaints under about 20 different laws. Under OSHA however there is a time limitation on filing a complaint. According to OSHA “If you have been punished or discriminated against for exercising your rights under the OSH Act, you must file a complaint with OSHA within 30 days of the alleged reprisal.” Thisis where the NLRB comes in.
The NLRB and Retaliation
Because of the limitation of that 30 day window many claims of retaliation are being missed. In 1975 OSHA and the NLRB signed a MOU (Memorandum of Understanding) that tied the two agencies together. That MOU said that workers’ rights were often tied to safety and could be considered to be unfair labor practices, normally covered by the NLRB, but they agreed that those types of complaints would be handled by OSHA regardless of where the complaint was filed.
Since that time the numbers of complaints have increased substantially and apparently many workers don’t know the 30 day limitation on filing. So these two agencies have revisited their MOU and decided that workers who have missed that deadline might have a way to have their complaint reviewed by the NLRB that has a 180 day limitation on filing a complaint. According to attorney Maria Danaher of Ogletree Deakins:
On May 22, 2014, an agreement was reached between the two entities in which OSHA agreed to advise all complainants who have filed or attempted to file an untimely Section 11(c) retaliation charge to contact the NLRB to inquire about filing an unfair labor practice charge under Section 8 of the NLRA.
The agreed-upon policy requires OSHA personnel to first discuss with the complainant his or her rights under Section 11(c) of the OSH Act, and make that employee aware of the fact that the untimely complaint will be screened out or dismissed.
After that, OSHA will advise the complainant of the right to file a charge with the NLRB, and of that agency’s 180-day time limit. Contact information will be provided regarding the appropriate NLRB field office. Closure letters for untimely OSHA complaints also will include this information.
Danaher noted that only safety issues that are considered “concerted activity” should be covered by the NLRB. However, as she points out, since safety issues generally concern more than one employee retaliation for a complaint could be seen as having a “chilling effect” on the activity of all concerned employees. Thus the NLRB will be more than likely to handle the complaint as a report of an unfair labor practice.
This expansion of the scope of the NLRB is just one more indication of the “activism” stance the Board has been taking to expand their influence over the workplace, both union and nonunion. Remember the NLRA covers nonunion companies as strongly as it does union companies.
Of course the remedy for this is to have a safe workplace and listen to your employees. But that is a subject for another day.