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NLRB and DOL Gang Up On Employers with Referral System
In August 2014, by Memorandum OM 14-77, the National Labor relations Board (NLRB) notified its Regional Offices that NLRB agents should take an active role in notifying employees who file unfair labor practice charges of their rights and potential claims under the Fair Labor Standards Act (FLSA) and under the Occupation Safety and Health (OSH) Act. Occasionally, unfair labor practice investigations unearth information about employment practices and/or decisions that may trigger other potential statutory violations. If during an unfair labor practice investigation an NLRB agent learns of facts that suggest that an employer has violated the FLSA or the OSH Act, the agent has been instructed to advise the complaining employee (or witness) of his right to file charges with OSHA and/or the Wage and Hour Division, both of which are agencies within the U.S. Department of Labor (DOL).
The NLRB’s expanded and active role in referring employees to the DOL comes months after the DOL and the NLRB approved a program that empowered OSHA investigators to refer whistle blowers to the NLRB. Section 11(c) of the OSH Act makes it unlawful for an employer to retaliate or otherwise discriminate against an employee for filing a safety complaint or engaging in other protected activities. The statute of limitations, however, allows only 30 days for an employee to file a discrimination complaint with OSHA. The National Labor Relations Act (NLRA) gives employees 180 days to file charges with the NLRB. Since safety related activities are typically also protected under the NLRA, an employee who fails to timely file his retaliation complaint with OSHA may still be able to file a charge with the NLRB based on the same set of facts. OSHA investigators have been instructed to refer employees making untimely complaints to the NLRB.
Employers need to remember that a separate NLRB or OSHA investigation could potentially lead to charges being later filed with other federal agencies. Employers may also experience a slight uptick in charges being filed as a result of the NLRB’s and DOL’s cooperation.