The Occupational Safety & Health Administration recently has entered into a referral agreement with the National Labor Relations Board (NLRB) under which it will direct workers wanting to pursue time-barred retaliation claims under workplace safety laws to the NLRB. This action follows the recent pattern of increased efforts to protect whistleblower rights across the board.
Under Section 11(c) of the Occupational Safety and Health Act (OSH Act), claims asserting retaliation against workers who complained about safety hazards must be filed within 30 days of the wrongful conduct. OSHA estimates that the agency dismisses hundreds of meritorious claims each year based solely on the fact that the claim was not filed within this short time frame. While the referral agreement does not alter this 30-day statute of limitations, OSHA agents now are directed to notify all complainants who file an untimely whistleblower charge of their right to file a charge with the NLRB.
Workers have substantially more time – six months – to file a charge with the NLRB, which investigates and evaluates charges of unfair labor practices. Such charges include complaints regarding any action that interferes with an employee’s participation in concerted activity for the purpose of collective bargaining or other mutual aid or protection, even if the employee is not in a union. Because of the “concerted” requirement, not all OSH Act retaliation claims will be viable at the NLRB. However, a number of claims are likely to fall within this scope, particularly instances of employer retaliation for group complaints concerning unsafe working conditions.
As a result of this new initiative, employers may expect to see an increase in unfair labor practice charges at the NLRB as many untimely retaliation charges that would be dismissed under the OSH Act are given a second life. To minimize this risk, employers should review their worker safety and anti-retaliation policies and procedures to ensure adequate protections are afforded to employee whistleblowers.
