OSHA Agrees To Refer Untimely Whistleblowers to the NLRB

For a printer-friendly copy, click here.

Thanks to a recent agreement between the Occupational Safety and Health Administration and the National Labor Relations Board, safety whistleblowers won't necessarily be defeated by untimely complaints. The agencies have agreed that, whenever a whistleblower tries to file a complaint after the 30-day deadline for such complaints, OSHA will simply refer the complainant to the NLRB, which has a six-month charge-filing period.

Section 11(c) of the Occupational Safety and Health Act contains a "whistleblower" provision that prohibits retaliation against employees who make workplace safety and health complaints. This protection applies to both internal and external complaints, and an employer who violates Section 11(c) can be ordered to reinstate the complaining employee and pay a wide range of monetary damages.

But there is a relatively small window for asserting a Section 11(c) claim. Employees must file a whistleblower complaint with OSHA within 30 days of the retaliatory event. Those who don't are out of luck – at least as far as Section 11(c) is concerned. According to OSHA, approximately 300-600 would-be complainants fail to meet that 30-day deadline each year.

Under the new agreement between the OSHA and the NLRB, whenever a Section 11(c) whistleblower comes to OSHA after the 30-day deadline, OSHA personnel will suggest that the whistleblower contact the NLRB as soon as possible to discuss whether the alleged retaliation violated federal labor law. There is a six-month deadline for filing unfair labor practice charges with the NLRB, so a whistleblower who misses the OSHA deadline may still have months left in which to file a Board charge. To ensure the effectiveness of this referral process, the NLRB has requested that all OSHA personnel who may receive or respond to Section 11(c) communications be trained on the new referral procedures.

Having disgruntled employees run to more than one agency to file claims is nothing new, but most employers typically do not see multiple agency complaints from first-time or non-union complainants. The OSHA–NLRB agreement means that employers may be routinely dealing with two or more federal agencies over the same factual issues.

Employers should also remember that OSHA investigates complaints under 21 other federal whistleblower statutes, including the Sarbanes-Oxley Act of 2002. Many of those statutes have filing periods longer than 30 days, and it is not uncommon for whistleblowers to file claims under more than one statute. So it's dangerous to assume you've avoided a retaliation claim just because your employee missed the deadline for filing an OSHA 11(c) claim.

And, if you're a non-union employer, do not think you're immune to NLRB charges. All employees have rights under federal labor law, even if they're not represented by a union.

If you have a question about OSHA (either the law or the agency), the National Labor Relations Act, or the NLRB, please contact any member of Constangy's OSHA or Labor Relations practice groups, or the Constangy attorney of your choice.

About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.