The Occupational Safety and Health Agency (OSHA) has begun referring employees who have filed untimely whistleblower retaliation complaints to the National Labor Relations Board (NLRB), which provides a longer time in which to file complaints. Under 11(c) of the Occupational Safety and Health Act (OSH Act), employees who believe they were discharged or discriminated against for making certain safety-related complaints or engaging in other safety-related activities may file complaints with OSHA. However, employees only have 30 days after such activiites to file complaints. Under the National Labor Relations Act, employees have the right to engage in protected, concerted activities for mutual aid or protection, and safety-related activity may constitute protected concerted activity. Employees have six months to file a complaint with the NLRB.
In a memorandum on this issue, OSHA 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.”
OSHA will make these referrals in an administrative closure letter to complainants, providing the phone number and website for complainants to contact the NLRB. OSHA has also drafted talking points for discussion with complainants, urging them to contact the NLRB in a timely manner. Lastly, the NLRB will track the number of these referrals.