Too often we hear of federal agencies operating in isolated – although related – spheres. When it comes to workers seeking to report unsafe working conditions or unfair labor practices, this can create gaps that, unless outfitted with a labor attorney, are difficult to navigate.
But the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) recently made massive strides toward a coordinated front – introducing inter-agency referral programs that could benefit whistleblowers.
Under Section 11(c) of the Occupational Safety and Health Act, an employee may issue a complaint alleging retaliatory behavior following a whistleblowing incident, but this claim must be filed within 30 days of the reported violation. OSHA estimates that 300 to 600 cases each year are dismissed or not pursued because the claim was not filed by this deadline. And a third of these claims miss the deadline by a month or less.
Under the National Labor Relations Act (NLRA), however, workers have six months to file complaints alleging unfair labor practices – which include retaliation. In order to fall under the NLRB’s jurisdiction, the claim must involve retaliatory behavior that interfered with the employees’ right, under the NLRA, to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” As an OSHA memorandum points out, “Although there may be some individual safety and health activities which may be protected solely under the OSH Act, many employee safety activities involve concerted activity protected under the NLRA, and therefore may be protected under both Acts.”
If a worker attempts to file a retaliation claim after the OSHA deadline, the agent will inform the employee of the right to file a complaint with the NLRB, and will provide the appropriate contact information.
In a supplemental memorandum issued Aug. 8, Anne Purcell, associate general counsel at the NLRB, announced her agency will return the favor. While investigating claims of unfair labor practices, if NLRB agents discover potential OSH Act violations – such as unsafe or unhealthy working conditions, they will inform complainants that claims also may be filed with OSHA. Likewise, if an NLRB investigation finds that an employer violated the Fair Labor Standards Act – by not paying employees appropriately for their hours worked, for example, agents will refer the complainant to file a claim with the Department of Labor’s Wage and Hour Division.
These unified inter-agency efforts may even involve regional offices coordinating the processing of shared cases, and joint training for agents.
Just the knowledge of this triple-threat referral approach could get employers back on their toes. As an article in the National Law Review advises, “Employers should perform frequent workplace audits to ensure that they are in the best position to minimize problems in labor-management relations.”