November 2, 2023
The National Labor Relations Board (NLRB) and Occupational Safety and Health Administration (OSHA) have agreed to team up to investigate and enforce protections for workers who raise safety concerns and suffer retaliation as a result.
Earlier this week (on Halloween no less), the NLRB and OSHA entered into a memorandum of understanding (“MOU”) “to facilitate interagency cooperation and coordination between the [NLRB] and [OSHA]” concerning the National Labor Relations Act (NLRA) and Occupational Safety and Health Act (OSH Act).
Although not the first time the NLRB and OSHA have agreed to work together, the recently signed MOU reflects a more formal process for collaborating and results in potentially greater NLRB involvement in matters of workplace safety traditionally handled by OSHA. There is no doubt that this collaboration is intended to result in an increase of unfair labor practices complaints filed with the NLRB.
According to the MOU, if OSHA comes across “potential victims of unfair labor practices” during one of its investigations or through other sources, it will refer them to the NLRB to file a complaint. In addition, if a worker files a complaint with OSHA that is beyond the 30-day time limit, OSHA will advise the worker to file the complaint with the NLRB, which provides for a six-month limitations period. Likewise, the NLRB will refer to OSHA information relating to workers who have complained about health or safety hazards so that the NLRB and OSHA can pursue the employer on different tracks.
The recent MOU is the latest attempt by the NLRB’s General Counsel to expand the NLRB’s reach in support of its aggressive pro-worker positions. Earlier this year, the NLRB’s General Counsel issued guidance on the illegality of confidentiality and non-disparagement clauses, and separately opined that employee non-compete agreements violate the NLRA. In addition, in August 2023, the NLRB adopted a new standard for assessing whether workplace rules contained in employee handbooks violate section 7 of the NLRA.
We will continue to monitor developments in this and other areas. Please feel free to reach out to Murtha Cullina’s Labor and Employment group if you have any questions.
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