On May 22, 2014, an agreement (the “Agreement”) was reached between the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB), to work together to investigate workplace violations based on complaints filed between the two federal agencies. In short, OSHA administers the Occupational Safety and Health Act of 1970 (the OSH Act) and the NLRB administers the National Labor Relations Act (NLRA).

Statute of Limitations on Employee Complaints

Employees who believe they have been retaliated against under any of the OSH Act laws may file a retaliation claim with OSHA but it must be filed within thirty (30) days of the last act of retaliation for it to be considered timely.

Employees who believe they have experienced a violation under the NLRA, e.g., engaging in “concerted activity” for “mutual aid or protection”, think unionizing (Section 7 of the NLRA) or an act which may be properly categorized as an “unfair labor practice” (Section 8), must file with the NLRB within 180 days of the violation to preserve their legal right.

As you can see, the statute of limitations is much longer under the NLRA. Unfortunately, many employees do not even become aware of OSHA’s ridiculously quick statute of limitations until it is too late and, as a result, lose their window to file. According to OSHA, this happens to hundreds of complainants per year.

Agreement Between OSHA and the NLRB

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According to the Agreement between OSHA and the NLRB, for those complainants who have filed or attempted to file a retaliation charge, which is ultimately deemed untimely under the OSH Act, they will be instructed to then contact the NLRB to inquire about filing an unfair labor practice charge under the NLRA, where the statute of limitations is longer.

Apparently, a memorandum of understanding was reached between OSHA and the NLRB in 1975 allowing this type of work sharing arrangement in order to handle any worker safety retaliation complaint filed with both agencies. At that time, OSHA agreed to take the lead in prosecuting the violations. However, as a workplace safety issue could potentially affect employees of the same company collectively, it may make sense in many fact patterns to allow a complainant the longer statute of limitations of the NLRA and to proceed under that law.

Increased Liability for Employers

The referral Agreement described above will cover not only the typical OSHA, workplace safety issues that one would imagine, but all of the other OSHA-operated programs including retaliation under Whistleblower laws, for example, the Sarbanes-Oxley Act (SOX Compliance Violations) and will include retaliatory acts such as firing, blacklisting, demoting and any type of discipline in response to asserting a protected right under the Whistleblower law.

Although this is a brief, elementary introduction to the work-sharing Agreement between the NLRB and OSHA regarding workplace safety, compliance, statute of limitations and retaliation, it gives employees and companies that operate in this space additional options and potential liability, respectively, when moving through the day-to-day operations of business. This is just another example, among several recently, of the NLRB expanding its investigatory and enforcement authority into the employment discrimination and retaliation areas.