Frustrated by a 30-day statute of limitations on whistleblower claims for alleged safety violations, OSHA agreed with the National Labor Relations Board to inform late filers they also can submit their complaints to the NLRB, which allows such claims to be filed for up to six months.
According to OSHA, between 300 and 600 safety-related complaints per year, about 10% of the total, were filed beyond the 30-day deadline, and at least 100 missed the deadline by less than a month.
NLRB General Counsel Richard F. Griffin, Jr. said OSHA filings may also raise claims under the National Labor Relations Act, such as instances of employer retaliation for group complaints concerning unsafe working conditions.
OSHA has given its intake personnel a template notification letter and in-person and telephone talking points to help explain a complainant’s options for filing a charge with the NLRB.
OSHA and NLRB are essentially rewriting the law, says attorney Eric J. Conn of the law firm of Epstein Becker Green.Congress intended that employees file safety-related complaints very quickly, he pointed out, because “it is not a matter of fairness at stake, it is potentially a matter of life and death, where delays in reporting such issues could have grave consequences.”
He also said an anticipated surge in stale safety claims masquerading as unfair labor practice charges can be expected to drive up the costs of with investigating and litigating meritless claims.
Employers should also be aware of the potentially harsher sanctions, Conn warned, because the NLRB can seek remedies that are not available to OSHA, including injunctive relief and ordering employers to change policies and procedures.
He also expects this new policy will likely result in unions involving themselves more frequently in safety issues because of their greater familiarity with NLRB procedures and personnel.