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OSHA to Notify Untimely Whistleblowers of Potential NLRB Claims

On May 21, 2014, the Associate General Counsel of the NLRB issued a memorandum announcing a referral program between OSHA and the NLRB. This memorandum follows a March 6, 2014 directive issued by Assistant Secretary of Labor for OSHA wherein OSHA agreed to notify all complainants who file an untimely whistleblower charge of the right to file an NLRB charge. Section 11(C) of the OSH Act requires whistleblowers to file retaliation claims within 30 days. NLRB claims, however, are afforded a 6 month limitation period. OSHA and the NLRB noted that many Section 11(C) claims, such as employer retaliation for group complaints over unsafe working conditions, may be filed with either OSHA or the NLRB. According to OSHA, approximately 7% of Section 11(C) complaints were “administratively closed” (not docketed) for missing the 30-day filing deadline. If the deadline for filing under Section 11(C) had been extended to 180 days, OSHA said that 600 more whistleblower complaints would have been timely filed and eligible for investigation. Therefore, OSHA agents will now include information about NLRB referrals in OSHA administrative closure letters, and will also relay NLRB referral information to complainants. Employers should expect an increase in unfair labor practice charges by employees alleging retaliation related to alleged reporting of workplace safety concerns. If you have questions, please feel free to contact a member of our employment section.

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