OSHA and the NLRB Offer Safety Whistleblower Plaintiffs a Second Bite of the Apple by Resurrecting Untimely Whistleblower Claims

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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In our last Workplace Safety & Health blog post, we discussed proactive steps employers can take should the Occupational Safety and Health Administration (OSHA) arrive with a union representative or community activist to inspect a nonunion worksite. On May 21, OSHA increased its emphasis on  promoting employee rights to union representation when Anne G. Purcell, associate general counsel of the National Labor Relations Board (NLRB), issued a memorandum announcing a referral program between OSHA and the NLRB. Under the new program, OSHA will notify all complainants who file untimely whistleblower charges pursuant to section 11(c) of the Occupational Safety and Health Act (OSH Act) that they may also file unfair labor practice charges with the Board under the National Labor Relations Act (NLRA). Purcell’s memorandum follows a March 6, 2014, directive issued by Assistant Secretary of Labor for Occupational Safety and Health David Michaels, wherein OSHA agreed to notify all complainants who file an untimely whistleblower charge of their right to file a charge with the Board.

Dual Remedy for Safety Retaliation Claims

Section 11(c) of the Osh Act gives employees 30 days to file complaints alleging retaliation for raising safety complaints or communicating with OSHA investigators. OSHA investigates whistleblower claims under 22 statutes, including the Surface Transportation Assistance Act, the Toxic Substances Control Act, the Clean Air Act, the Consumer Financial Protection Act of 2010 (CFPA), Section 1057 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Sarbanes-Oxley Act, and section 1558 of the Affordable Care Act (ACA). OSHA’s new referral policy is unsurprising in light of its recent efforts to bolster section 11(c)—the oldest and most widely-used whistleblower statute.

On April 29, Assistant Secretary Michaels appeared before the U.S. Senate Subcommittee on Employment and Workplace Safety and implored Congress to implement changes to section 11(c) to bring it in line with other whistleblower laws enacted during the last 20 years. According to Michaels, OSHA receives over 200 section 11(c) complaints each year that are rejected as untimely under the 30-day statute of limitations. Michaels noted that approximately 7 percent of section 11(c) complaints were “administratively closed” (not docketed) for missing the 30-day filing deadline. In approximately one-third of these cases, the complainant missed the deadline by only 30 days or less. If the deadline for filing under section 11(c) had been extended to 180 days, Michaels said, 600 more complaints would have been timely filed and eligible for investigation. Rather than wait for Congress to possibly alter the statutory 30-day limitations period, OSHA has now decided to refer these lost claims to the NLRB.

According to the Board’s May 21 memorandum, whistleblower charges alleging violations of OSH Act section 11(c) “may also raise claims arising under the National Labor Relations Act; for example, instances of employer retaliation for group complaints concerning unsafe working conditions. These complaints may still be timely under our six-month statute of limitations.” To ensure that complainants are not left without a second bite at the apple, OSHA has prepared a template notification letter  to untimely section 11(c) claim filers whose cases will be administratively closed. This letter contains a recommendation that the claimant “contact the National Labor Relations Board (NLRB) as soon as possible to inquire about filing a charge alleging unfair labor practices.” OSHA intake personnel have also been provided in-person or telephone conversation talking points to help explain a complainant’s rights and options for filing a charge with the Board.

State OSHA Plans May Follow Federal OSHA’s Leave

Unlike most OHSA compliance directives, this new policy does not direct states with federally-approved OSHA plans to take similar steps in advising complainants of their rights under the NLRA. This is perhaps due in part to the fact that several OSHA-approved state plans—including those in Kentucky, California, Connecticut, Hawaii, North Carolina, Oregon, and Virginia—have lengthened the 30-day filing period in section 11(c). It is unclear at this point whether the remaining state plans will be directed to adopt policies or procedures identical to or at least as effective as those set out in this newly-announced policy. At the same time, federal OSHA has exercised a heavy hand in urging state plan states to engage in tough enforcement, and will likely strongly encourage state plans to follow its policy.

Expect an Uptick in Safety-Related ULPs

Regardless of whether similarly-situated state plans follow suit, employers can expect a sizable uptick in unfair labor practice charges filed by employees alleging retaliation related to alleged reporting of workplace safety concerns. It is well-settled that section 8(a)(1) of the NLRA prohibits employers from taking adverse action against employees who engage in protected concerted activity. NLRB case law defines “concerted activity” as conduct “engaged in with or on the authority of other employees” including “circumstances where individual employees seek to initiate or to induce or to prepare for group action.” In some circumstances, reporting of safety concerns, particularly when more than one employee is involved in the complaint or when one employee is speaking on behalf of other workers, may constitute activity protected by section 7 the NLRA.

On the other hand, it is equally well-settled that employees who raise purely individual concerns or gripes are not engaged in activity protected by section 7. For example, in Parker Laboratories, Inc., 267 NLRB 1174, 1177-1178 (1983), the Board upheld an administrative law judge’s decision to dismiss an unfair labor practice complaint on the basis that an employee’s complaints to fellow employees about what he perceived as the employer’s failure to “live up to a commitment for a higher starting salary for him” did not constitute concerted activity.

Key Takeaways

The new partnership between OSHA and the NLRB should serve as a reminder to employers that the regulatory playing field favors employees and unions. Cases involving retaliation against employees because of their alleged engagement in protected concerted activity under the NLRA are often among the most difficult to defend. One reason is because the line between protected and unprotected activity is extremely fact-sensitive. Another reason is that such cases typically turn on witness credibility resolutions. When confronted with an unfair labor practice charge involving alleged protected concerted activity, a best practice is to have counsel collect the relevant facts and documentation. Critically analyzing each of the elements of the employee’s claim will help identify useful defenses to insure employer rights are preserved.

 

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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