The Occupational Safety and Health Administration (OSHA) will now refer all untimely retaliation claims to the National Labor Relations Board (NLRB) to determine whether an employer engaged in an unfair labor practice (ULP) under the National Labor Relations Act (NLRA). 
Background
On March 6, 2014, David Michaels, OSHA’s assistant secretary of labor, signed a memo stating the agency will refer all employees who file untimely retaliation claims to the NLRB to determine whether they have a ULP claim under the NLRA. On May 21, 2014, the NLRB issued a memo outlining the details of the agreement.
OSHA retaliation claims. Section 11(c) of the Occupational Safety and Health Act (OSH Act) states, “No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act.” Section 11(c) retaliation complaints must be filed within 30 days of the alleged retaliatory action.
NLRB ULP claims. Section 7 of the NLRA states, “Employees shall have the right to . . . engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employees’ rights are protected regardless of whether they belong to a union. Section 8 of the NLRA prohibits ULPs that restrain or coerce employees in the exercise of their rights under Section 7. ULP claims must be filed within six months of the alleged unfair activity.
Referral process
Although some OSHA retaliation claims involve individual safety and health concerns, many involve several employees. Therefore, employees who file claims may be protected from retaliation under Section 7 of the NLRA. Under OSHA’s agreement with the NLRB, OSHA will advise employees who file untimely retaliation claims to contact the Board about filing a ULP charge under the NLRA, which provides a longer six-month period to file a claim with the NLRB, so many claims that do not meet the 30-day OSHA deadline may easily meet the NLRB’s deadline.
OSHA agents will be given sample letters and talking points to assist them in informing employees about the NLRA and referring complaints to the NLRB. OSHA will provide employees with the appropriate NLRB field office’s contact information and a toll-free number to file a complaint.
The NLRB has agreed to track the number of contacts and ULP charges received through the referral program.
Bottom line
The agreement between OSHA and the NLRB will undoubtedly result in more ULP charges against employers. OSHA estimates that 300 to 600 complaints are dismissed each year because of the 30-day deadline. 
Under the new agreement, those complaints will be directed to the NLRB to determine whether a timely ULP claim exists.
Jeffrey A. Gruen is an attorney with Day Pitney LLP in Parsippany, New Jersey. He may be contacted at jgruen@daypitney.com.