On May 21, 2014, the National Labor Relations Board (NLRB) published a memorandum discussing a new agreement between NLRB and OSHA regarding a backdoor route for employees to file safety related whistleblower claims that are too stale to be filed with OSHA. The NLRB memo directs OSHA representatives to “notify all complainants who file an untimely [OSHA] whistleblower charge of their right to file a charge with the NLRB.” As a result of this agreement, employers should expect an increase in the number of unfair labor practice claims filed by employees alleging retaliation for protected safety related whistleblower activity.
Section 11(c) of the Occupational Safety and Health Act of 1970 (Section 11(c)) requires employees to file complaints alleging retaliation for protected safety related whistleblower activities within thirty days of the triggering adverse employment action. The Assistant Secretary of Labor for OSHA, Dr. David Michaels, recently testified before the Senate, Labor and Pensions Subcommittee on Employee and Workplace Safety about OSHA’s whistleblower program. One of the key points of his testimony was that between 300 and 600 Section 11(c) complaints per year (roughly 10%) were filed beyond the 30-day deadline. Dr. Michaels added that at least 100 of these complaints barely missed the deadline -- by less than a month.
The National Labor Relations Act (NLRA), on the other hand, addresses different types of claims and also provides for a much longer statute of limitations. Section 7 of the NLRA provide: “Employees shall have the right to. . . engage in concerted activities for the purpose of collective bargaining or other mutual air or protection.” Section 8 prohibits unfair labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” The NLRA has a 6-month statute of limitations for claims of unfair labor practices.
Because the NLRA’s statute of limitations is six months longer than the OSH Act’s, OSHA agents will now advise employees who file an untimely Section 11(c) claim that their claims may qualify as unfair labor practices under the NLRA, and explain their rights to file such claims with the NLRB, where their claims could be timely. For a claim to qualify for protection as an unfair labor practice, however, the claim must involve “concerted activities.” Thus, not every employee who was unable to file a timely Section 11(c) complaint will have a viable unfair labor practice claim, even if it would be timely under the NLRA.
The NLRB has provided a set of talking points to OSHA to help the OHSA agents discuss these rights with employees:
- OSHA recommends that you contact the NLRB as soon as possible, to inquire about filing a charge
alleging unfair labor practices.
- The time limit to file a charge with the NLRB is 6 months from the unfair labor practice.
- The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren't in a union.
- OSHA may not determine whether you are covered by the NLRA. Please contact the NLRB to discuss your rights under the NLRA.
OSHA also plans to include this information when it sends letters alerting employees that their 11(c) claims are being closed as untimely.
Neither the NLRB nor OSHA has addressed the legal issues posed by this agreement. Congress intended that employees must file safety related whistleblower complaints very quickly, which is why it set such a short limitations period. The short deadline for such claims makes sense because safety and health issues pose special risks; i.e., it is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting such issues could have grave consequences. Creating a loophole or backdoor to extend the filing deadline for claims that could have been timely pursued as 11(c) claims by treating them as NLRA violations could discourage timely reporting under the OSH Act. Moreover, this new policy increases the likelihood and frequency that the NLRB, an agency without the special knowledge of safety and health regulations that OSHA has, will be making decisions and setting precedent regarding OSHA regulatory issues. This will almost certainly lead to inconsistent and unintended applications of OSHA’s regulatory scheme, and confusion for employers and employees.
The anticipated surge in stale safety whistleblower claims masquerading as unfair labor practice charges will likely drive up the costs associated with investigating and potentially litigating meritless claims. Employers should also be aware of the potentially harsher sanctions associated with safety whistleblower issues because the NLRB can seek remedies not available to OSHA, such as injunctive relief and orders that require employers to change policies and procedures. Finally, this new policy will likely result in unions involving themselves more frequently in safety issues because of their familiarity with NLRB procedures and personnel.
Special thanks to Alina A. Grinblat, a Summer Associate in Epstein Becker Green’s Washington, DC office, for her contribution to the preparation of this post.