While hoping to get Congress to increase the 30-day statute of limitation for claims of whistleblower retaliation at work, OSHA administrator David Michaels has commenced a cooperative program with the National Labor Relations Board (NLRB) for concurrent claim filings.
Yesterday, the NLRB's general counsel issued a memorandum announcing the new "claim referral program," whereby OSHA intake investigators will "notify all complainants who file an untimely whistleblower charge of their right to file a charge with the NLRB," where there is a six-month statute of limitations.
According to the memorandum, whistleblower charges alleging violations of OSH Act section 11(c) "may also raise claims arising under the National Labor Relations Act; for example, instances of employer retaliation for group complaints concerning unsafe working conditions."
A Memorandum of Understanding (MOU) between the two agencies states:
Although there may be some individual safety and health activities which may be protected solely under the OSH Act, many employee safety activities involve concerted activity protected under the NLRA and therefore may be protected under both Acts. Given this possible overlap, OSHA and the NLRB signed an MOU in 1975, outlining the procedures for handling worker safety retaliation complaints file with both or either agency. The MOU generally provides that where a complaint is filed with both agencies, enforcement actions should primarily be taken under the OSH Act, rather than the NLRA.
The concurrent claims process is aimed to help alleviate what Michaels lamented about during a Senate subcommittee conference — that his agency misses many whistleblower cases because of the short statute of limitations.