By David Dubberly
Maynard Nexsen PC
On October 31, 2023, the Occupational Safety and Health Administration (OSHA), the federal government agency that enforces workplace safety standards, and the National Labor Relations Board (NLRB), which enforces labor laws, signed a Memorandum of Understanding (MOU) designed to further protect workers who raise safety concerns from retaliation. The MOU takes effect immediately.
The MOU calls for both agencies to work together to enhance information sharing and referrals, cross-train staff at each agency, and partner on investigations into complaints by employees. The MOU illustrates the Biden administration’s “whole of government” interagency approach to expanding labor and employment standards.
Regarding sharing information, the MOU states:
- “OSHA will, when encountering potential victims of unfair labor practices who have not filed a complaint with the NLRB, promptly provide them or their collective bargaining representative with the NLRB’s” contact information.
- “[I]f an employee who is the potential victim of an unfair labor practice files a section 11(c) [whistleblower] complaint with OSHA and that complaint is untimely, OSHA will advise the complainant that they may file a charge with the NLRB and that the NLRB time limit to file (6 months) is longer than OSHA’s (30 days) and therefore OSHA recommends that the complainant contact the NLRB as soon as possible,” providing the NLRB’s contact information to the employee.
- The “NLRB will promptly share with OSHA information related to workers currently or likely exposed to health or safety hazards or to suspected violations of the laws that OSHA enforces and/or encourage affected individual(s), representatives, or labor organizations to promptly contact OSHA,” providing OSHA’s contact information.
In addition to sharing information, the MOU calls for OSHA and the NLRB to consider conducting “coordinated investigations and inspections” in some cases. If the agencies find overlapping alleged violations, “they shall explore and confer regarding what enforcement actions are appropriate for each agency to undertake.”
Cross-Training of Staff
With regard to “reciprocal training and education,” the MOU sets out that OSHA will train NLRB personnel on OSHA standards, the general duty clause of the Occupational Safety and Health (OSH) Act, and the OSH Act’s anti-retaliation provision, Section 11(c). The NLRB will train OSHA staff on what constitutes concerted activity under Section 7 of the National Labor Relations Act (NLRA) and what constitutes an unfair labor practice under section 8(a) of the NLRA.
According to the MOU, states that operate their own occupational safety and health programs under an OSHA-approved state plan (such as North Carolina, South Carolina, and Tennessee) will be expected to respond to referrals from the NLRB concerning potential violations of occupational safety and health standards by conducting investigations in a timely manner. Also, OSHA will encourage state plans to participate in all training and information-sharing activities established under the MOU.
What It Means For Employers
To prepare for enhanced OSHA and NLRB enforcement efforts, employers should consider making sure managers and supervisors are trained on OSH Act and NLRA requirements, including protections afforded to whistleblowers, and on the rights employers have when faced with an OSHA inspection.
The Maynard Nexsen Employment & Labor Law group stands ready to assist employers with questions about OSHA and NLRA matters. Please contact us for any additional information or guidance.
David Dubberly is an employment and labor lawyer with Maynard Nexsen PC.