In a development that is likely to trigger an increase in the number of unfair labor practice charges filed under the National Labor Relations Act (“NLRA”), the Occupational Safety and Health Administration (“OSHA”) recently agreed that it will notify complainants who file an untimely retaliation claim under Section 11(c) of the Occupational Safety and Health Act of 1970 (the “OSH Act”) that they may file an unfair labor practice charge with the National Labor Relations Board (“NLRB”). Section 11(c) of the OSH Act bars retaliation against workers who report safety hazards. The OSH Act has a 30-day statute of limitations, while workers have six months to file an unfair labor practice charge with the NLRB. Under a new cooperation agreement with the NLRB, OSHA agents will provide untimely complainants with information about the NLRB and how to file a charge under the NLRA.

Unlike the OSH Act, the NLRA is not specifically a workplace safety law. However, the NLRA gives employees the right to act together to affect the terms and conditions of employment, and this right can encompass a concerted complaint about or report of unsafe working conditions. The NLRA also protects the right of employees, whether acting together or individually, to refuse to perform work that they believe in good faith to be abnormally dangerous. While not all OSH Act retaliation claims will fall under the protection of the NLRA and thus, the jurisdiction of the NLRB, the NLRB is expected to take a broad view of its enforcement powers in this context. The referral program is therefore likely to result in an uptick of unfair labor practice charges against employers of both unionized and non-unionized workforces.

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