The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) recently entered into a new Memorandum of Understanding (MOU) under which the two agencies have agreed to work together to foster interagency cooperation and coordination through information sharing, referrals, training and outreach, with a particular focus on enforcement of the anti-retaliation provisions of the National Labor Relations Act (NLRA) and Occupational Safety and Health Act (OSH Act), as well as other whistleblower provisions under laws falling within the agencies’ jurisdiction. Here are some key elements of the MOU.
Information Sharing
NLRB and OSHA may share any information or data that supports each agency's enforcement mandates, whether obtained during an investigation or through any other sources, to the extent permitted by law. This may include complaint referrals, information contained in a complaint or investigative files relating to alleged violations of the NLRA and laws enforced by OSHA.
Importantly, information can only be shared after a careful review and determination from the supplying agency that the information is both relevant and necessary to the recipient agency's enforcement responsibilities, and that the information will be used in a manner that is compatible with the purposes for which the agency collected the records. When information is shared, each agency must comply with applicable confidentiality, disclosure and information security rules, as well as any additional terms and conditions the supplying agency may specify to the information shared.
The MOU also places separate imperatives on each agency. OSHA, for example, must promptly provide the potential complainant or its collective bargaining representative with the NLRB's phone number and website whenever it encounters a potential victim of an unfair labor practice who has not filed a complaint with the NLRB. Additionally, if a potential victim of an unfair labor practice files an untimely retaliation complaint with OSHA, the agency must advise the complainant: (1) that they may file a charge with the NLRB; (2) that the NLRB time limit to file a complaint is six months, as opposed to OSHA’s shorter 30-day time limit; and (3) that they should contact the NLRB as soon as possible to discuss their rights.
The NLRB, in turn, must promptly share with OSHA information related to workers currently or likely exposed to health or safety hazards or to suspected violations of the laws that OSHA enforces and/or encourage affected individual(s), representatives or labor organizations to promptly contact OSHA via telephone or by filing an online safety and health or whistleblower complaint through OSHA's website.
Coordinated Investigations and Enforcement
The MOU provides for coordinated investigations and inspections between the agencies in appropriate instances where overlapping statutory violations have occurred. Notably, however, this section of the MOU is less robust than similar provisions in other recent MOUs between different federal agencies.
Training, Education and Outreach
The NLRB and OSHA also must provide ongoing training to appropriate personnel from the other agency. This includes training of OSHA personnel on what constitutes concerted activity under Section 7 of the NLRA, what constitutes an unfair labor practice under Section 8(a) of the NLRA and the basic procedures for investigating and adjudicating unfair labor practice charges. NLRB personnel will be trained on OSHA standards, recordkeeping and reporting regulations, the general duty clause and employee rights protected under Section 11(c) of the OSH Act and other whistleblower provisions that OSHA is responsible for enforcing, in addition to education on jurisdictional coverage and procedural requirements under those laws.
Additionally, where the agencies mutually determine it to be appropriate, they must engage in public engagement, outreach, and education including at conferences and events, on social media and during “Labor Rights Week.” NLRB and OSHA must also co-develop joint policy statements, guidance materials and technical assistance documents to facilitate a greater understanding and awareness of the laws that each agency enforces.
State Programs
There are currently 22 states and territories, including California, Maryland and Virginia, with OSHA-approved state programs (State Plans) that cover both private sector and state and local government workers. Under the MOU, OSHA and NLRB must collaborate to facilitate referrals of potential violations from relevant state agencies in states with their own State Plans.
Such State Plans will be expected to respond to NLRB referrals concerning potential violations of the states' occupational safety and health standards or regulations by conducting investigations in a timely manner. OSHA will also encourage states to participate in all training and information-sharing activities established under the MOU.
Employer Takeaways
Employers may expect to see an increase in enforcement activity by NLRB and OSHA, particularly related to allegations of unlawful retaliation given the commitments outlined in the agencies’ MOU. Notably, employers should be mindful that the provisions of the NLRA apply to both unionized and non-unionized workforces – thus, the MOU presents issues relevant to all employers. Employers should consult with counsel regarding scope and content of information to be produced or shared during an investigation or inspection by either agency or in connection with federally mandated reporting, given the possibility that such information now may be shared with both agencies and open the door for the non-investigating agency to intervene. Employers should also review and, to the extent practicable, revise their labor, safety and health practices in light of the MOU to mitigate future risk.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
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