Latest MOU has Implications for OSHA Section 11(c) Compliance
OSHA’s latest MOU with the National Labor Relations Board establishes a process for information sharing and referrals between the agencies which has implications for OSHA Section 11(c) compliance.
OSHA’s Whistleblower Protection Program enforces the anti-retaliation provisions of 24 federal laws in addition to those in Section 11(c) of the OSH Act. These provisions are designed to protect employees from retaliation for reporting concerns about hazards in the workplace or for reporting violations of workplace safety standards. Employees who believe that they have experienced retaliation in violation of one of these laws may file a complaint with OSHA within the time allowed.
The time allowed to file a complaint with OSHA varies depending on which law has been violated. For example, employees that have been retaliated against for reporting violations of the OSH Act, the Clean Air Act, and the Solid Waste Disposal Act have only 30 days in which to file a complaint; whereas employees that have been retaliated against for reporting a violation of the Seaman’s Protection Act or Pipeline Safety Improvement Act have 180 days to file a complaint with OSHA.
The purpose of OSHA’s latest MOU with the National Labor Relations Board (NLRB) is to standardize the time allowed to file complaints that qualify for anti-retaliation protection under Sections 7 and 8 of the National Labor Relations Act. The Act allows 180 days to file a complaint for retaliation with the NLRB, and the Memorandum of Understanding will enable OSHA to refer qualifying time-barred complaints to the NLRB for investigation and – if a complaint is justified – to initiate proceedings.
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In return, when the NLRB receives information about safety or health issues in the workplace or violations of OSHA standards, it will pass the information onto OSHA or encourage the affected individuals or labor organizations to contact OSHA directly. Personnel in both agencies will be trained on the procedures for exchanging information and factors such as what constitutes a violation of the National Labor Relations Act or a violation of the OSHA’s standards or recordkeeping requirements.
The Implications for OSHA Section 11(c) Compliance
OSHA Section 11(c) compliance means complying with §1977.3 of the OSH Act. This standard prohibits employers from discriminating against or retaliating against any employee who files a complaint to OSHA or who testifies in a proceeding relating to the complaint. The standard also covers discrimination or retaliation against any employee who “caused to be instituted any proceeding under or related to the Act” (i.e., a union rep providing advice to a member).
OSHA is keen to promote the message that employees should not fear reporting workplace safety and health issues to the agency; and, when employers retaliate against employees that have filed complaints, OSHA tends to “vigorously pursue whistleblower enforcement action”. For example:
Wells Fargo Ordered to Pay More Than $22M for Retaliating against Former Executive
Delaware Salvage Yard Fined $81,255 and Ordered to Pay Whistleblower $40,000 in Damages
Dentist Ordered to Pay $20,000 Back Wages After Terminating Whistleblower
Employer Ordered to Pay $15,000 Damages for Retaliation Against COVID-19 Whistleblower
Health System to Pay More Than $250K to Settle Whistleblower Investigation
The implications of the MOU with the NLRB for OSHA Section 11(c) compliance are that, rather than having 30 days to file a complaint about discrimination or retaliation, employees will have six times longer to file a qualifying “domination or interference” complaint. Furthermore, OSHA violations that are identified by NLRB will be communicated to OSHA if – for example – a safety and health issue is found during the course of an investigation into a violation of the National Labor Relations Act.
Consequently, the likelihood of a non-compliant employer being investigated by OSHA is higher than ever. Employers who are unsure about the OSHA Section 11(c) compliance requirements should seek professional compliance advice. Employers who are unsure about any of the other OSHA compliance requirements can either download our OSHA compliance checklist or contact OSHA directly on 800-321-6742 (OSHA).
