Earlier this year, the Occupational Safety and Health Administration (OSHA) decided that it will refer all untimely retaliation claims to the National Labor Relations Board (NLRB) to determine whether an employer engaged in an unfair labor practice (ULP) under the National Labor Relations Act (NLRA).
Background
In March 2014, David Michaels, OSHA’s Assistant Secretary of Labor, signed a memorandum stating the agency will refer all employees who file untimely retaliation claims to the NLRB to determine whether they have a ULP claim under the NLRA. In May, 2014, the NLRB issued a memorandum outlining the details of the agreement.
OSHA retaliation claims.
Section 11(c) of the Occupational Safety and Health Act (OSH Act) states, “No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act.” Section 11(c) retaliation complaints must be filed within thirty (30) days of the alleged retaliatory action.
NLRB ULP claims
Section 7 of the NLRA states, “Employees shall have the right to . . . engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employees’ rights are protected regardless of whether they belong to a union. Section 8 of the NLRA prohibits ULPs that restrain or coerce employees in the exercise of their rights under Section 7. ULP claims must be filed within six months of the alleged unfair activity.
Referral process
Although some OSHA retaliation claims involve individual safety and health concerns, many involve several employees. Therefore, employees who file claims may be protected from retaliation under Section 7 of the NLRA. Under OSHA’s agreement with the NLRB, OSHA will advise employees who file untimely retaliation claims to contact the NLRB about filing a ULP charge under the NLRA, which provides a longer six-month period to file a claim, so many claims that do not meet the 30-day OSHA deadline may easily meet the NLRB’s deadline.
The NLRB has agreed to track the number of contacts and ULP charges received through the referral program.