NLRB, OSHA Enter into Whistleblower Complaint Referral Program

Author: Melissa Gonzalez Boyce, XpertHR Legal Editor

May 29, 2014

The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) entered into a referral program in which OSHA agreed to refer time-barred whistleblower complaints regarding workplace safety to the NLRB for further investigation. The NLRB is likely to see a surge of safety-related ULPs as a result of this alliance with OSHA.

Whistleblower complaints under Section 11(c) of the OSH Act require individuals to file the claim within 30 days of the alleged adverse action. In contrast, the National Labor Relations Act provides individuals up to 180 days to file an unfair labor practice charge (ULP) with the NLRB. As stated in the memorandum issued by the NLRB, it is likely that some of the cases dismissed by OSHA as untimely "may also raise claims 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 [the NLRB's] six-month statute of limitations."

Under the agreement, OSHA personnel will advise a complainant when his or her complaint is screened out or dismissed as untimely under Section 11(c) that he or she may contact the NLRB to inquire about filing a ULP. OSHA personnel will also inform the complainant that the NLRB time limit to file the ULP is six months compared to OSHA's one-month deadline and that he or she should contact the NLRB as soon as possible. Contact information to the appropriate NLRB regional office will also be provided to the complainant during in-person or telephone conversations as well as be included in OSHA's closing letter for the dismissed complaints.

OSHA estimates that approximately 300-600 Section 11(c) cases are dismissed each year because they were filed beyond the 30-day period. Assistant Secretary David Michaels recently testified before the Senate Subcommittee on Employment and Workplace Safety, requesting that the OSH Act be amended to extend the limitations period.