On Oct. 31, 2023, the National Labor Relations Board (NLRB) and Occupational Safety and Health Administration (OSHA) executed a Memorandum of Understanding (MOU) regarding a partnership to strengthen worker safety protections. The partnership is designed to enhance protections for workers who speak out about health and safety conditions in the workplace or engage in a potentially protected activity triggering anti-discrimination and/or whistleblower protection under federal labor and health and safety laws.
The MOU announced a five-year partnership that will enhance information sharing and referrals, training, and outreach to support each agency’s enforcement mandates effectively. The MOU is part of the Biden administration’s “whole of government” approach to enforcement to extend federal protections as broadly as possible. The NLRB and OSHA’s information sharing may include compliant referrals and information or investigation files related to potential violations. For example, the MOU directly states that if an employee files an untimely (e.g., beyond the 30-day limitations period) complaint with OSHA regarding unfair labor practices, OSHA will advise the complainant to file a charge with the NLRB as soon as possible. The MOU also states that the NLRB may encourage impacted workers to promptly contact OSHA via phone or file an online safety and health or whistleblower complaint on OSHA’s website. As a result, employers may face increased scrutiny and labor and safety enforcement efforts from federal agencies.
Additionally, the MOU will formalize interagency cooperation by enabling the NLRB and OSHA to cross-train staff at each agency, partner on investigative efforts within each agency’s authority and enforce anti-retaliation provisions.
The NLRB and OSHA have historically cooperated to improve worker health and safety efforts, as many worker health and safety efforts are protected under both the Occupational Health and Safety Act (OSH Act) and the National Labor Relations Act (NLRA). The MOU formalizes that cooperation moving forward, which will likely result in increased dual-tracked investigations and litigation for employers over the same alleged conduct.
If OSHA finalizes its proposed rule (Worker Walkaround Representative Designation), the MOU could take on broader implications, as the proposed rule empowers OSHA compliance safety and health officers to designate certain individuals (e.g., community activists and union organizers) to accompany OSHA on workplace inspections in response to an employee request. Employers can best protect themselves from coordinated OSHA and NLRB enforcement efforts by proactively evaluating and improving their workplace health and safety programs. Contact us today for further information.
Article Published By: Zywave, Inc.