The NLRB Office of the General Counsel recently issued a memorandum stating that the NLRB entered into a “referral agreement” with OSHA, which requires OSHA to inform whistleblowers that certain untimely filed retaliation claims may be actionable and timely referred to the NLRB.
Section 11(c) of the OSH Act requires whistleblowers to file retaliation claims within a 30-day limitations period. NLRB claims, however, are afforded a six-month limitations period. While individual health and safety complaints will fall solely under the OSH Act, the NLRB noted that many Section 11(c) claims, such as employer retaliation for group complaints over unsafe working conditions, may be filed with either OSHA or the NLRB. OSHA agents will include information about NLRB referrals in OSHA Administrative Closure Letters and relay NLRB referral information to complainants who contact the Administration by phone or in person.
What’s the impetus for the referral agreement? David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, testified before the United States Senate subcommittee of the Committee on Health, Education, Labor and Pensions that OSHA dismisses over 200 untimely filed whistleblower claims a year. The NLRB memorandum noted that, in 300 to 600 cases per year, complainants learn of the 30-day limitations period during the OSHA intake process and either decline to file or untimely file Section 11(c) claims with the Administration. The new referral system will provide hundreds of complainants with a second chance to assert health and safety retaliation claims that would have otherwise been time-barred and employers should expect increased NLRB investigations and enforcement actions in the coming years.