OSHA To Refer Untimely Retaliation Claims to NLRB

by Ballard Spahr LLP
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The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) have entered into a new program that will provide whistleblowers an avenue to pursue claims that are time-barred by the Occupational Safety and Health Act of 1970 (OSH Act). Under the program, OSHA will advise complainants who file or attempt to file untimely whistleblower claims under the OSH Act to contact the NLRB about their right to file an unfair labor practice charge instead. As a result of this cooperation, employers may see an increase in charges tied to retaliation for reporting workplace safety issues.

Section 11(c) of the OSH Act requires that charges asserting a whistleblower claim with OSHA be filed within 30 days. OSHA estimates that 300 to 600 whistleblower claims are dismissed as untimely each year for failing to meet this requirement. Many of these claims may also raise claims under the National Labor Relations Act (NLRA), however, and would still be viable under the NLRA’s six-month statute of limitations. The two agencies entered into this program to preserve such claims.

OSHA’s policy advises complainants with untimely charges of their right to file an unfair labor practice charge with the NLRB, and provides contact information for the appropriate NLRB Field Office to inquire about doing so. NLRB agents have been instructed to track the number of contacts received and number of charges docketed as a result of the OSHA referrals. 

This agreement between the NLRB and OSHA expands on a 1975 Memorandum of Understanding (MOU) between the two agencies outlining cooperative processes for handling retaliation complaints that could be filed with either agency. The MOU generally provides that where a complaint is filed with both agencies, enforcement actions should primarily be taken under the OSH Act, rather than the NLRA.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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