The Biden Administration is trying to make it easier for employees to voice their health and safety concerns on the job. To that end, two agencies that oversee workplace safety and health will be working more closely together—creating potential implications for employers.
This partnership between the National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) is laid out in the Memorandum of Understanding (MOU) the agencies entered into last fall. The purpose of this partnership is to establish a process for information sharing, referrals, training and outreach between the agencies. Through this collaboration, the agencies aim to address and highlight certain anti-retaliation and whistleblowing issues.
The strengthening of this existing relationship is of no surprise, as President Joe Biden has repeatedly expressed his support of unions and their involvement with OSHA inspections. This partnership also follows the Department of Justice’s own initiatives to crack down on corporate crimes and the role that whistleblowing and retaliation play in those circumstances. Further, events such as the #MeToo movement have increased the focus on whistleblowing as reporting of unethical behaviors (e.g., harassment, discrimination, bullying, and workplace safety) have increased.
Since shortly after OSHA was founded, the NLRB and OSHA have regularly engaged in cooperative efforts during investigations. This MOU is a natural development, as both agencies work to protect the safety and health of the workplace. This most recent partnership allows the agencies to streamline their efforts. NLRB’s General Counsel Jennifer Abruzzo stated that this MOU will “bolster protections for workers to speak out about unsafe working conditions by strengthening coordination between OSHA and the NLRB on our enforcement efforts.”
This MOU comes after the NLRB’s Interagency Coordination Initiative in 2022, which attempted to take a whole-of-government approach to enforcement by improving collaboration between federal agencies to better protect workers. General Counsel Abruzzo said that “it’s crucial for federal agencies to collaborate to increase workers’ protections from systemic abuses, including discrimination, retaliation and other mistreatment—while also working to promote equity in the workforce.”
Equally as important to the MOU is OSHA’s Walkaround Rule, which allows a union representative to accompany an OSHA inspector during an inspection. It is OSHA’s belief that the union official should be able to participate in the inspections even if the union itself did not represent the relevant employees in collective bargaining or have any safety experience.
On March 29, OSHA published a Final Rule addressing the right of employees to have a third-party accompany an OSHA officer during an inspection. This rule will go into effect May 31 and clarifies that employees may authorize another employee or a non-employee to serve as their representative. For a non-employee to act as representative, the compliance officer must believe he is “reasonably necessary to the conduct of an effective and thorough inspection” based on “skills, knowledge or experience, such as knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.”
Employers need to be aware that such union participation during inspections could lead to increased disruption at their worksite. Furthermore, allowing a union representative to participate in inspections may open the door for individuals with hidden agendas to gain access to the worksite and attempt to obtain confidential information or raise unrelated environmental concerns. Employers should start preparing their management and supervisors for the changes to come.
OSHA and the NLRB support these efforts for collaboration by citing the legislative codes that initially called for the creation of these agencies. Section 7 of the National Labor Relations Act (NLRA) protects employees’ right to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. Section 11(c) of the Occupational Safety and Health (OSH) Act provides protection for employees from retaliation for filing a complaint or instituting a proceeding related to the OSH Act.
While there are several aspects of the MOU that employers need to take note of in order to prepare themselves for the effects of the strengthened partnership, there are four areas that are of high importance.
1. Exchange of Information
According to the MOU, the NLRB and OSHA “may share, either upon request or upon the respective agency’s own initiative, any information or data that supports each agency’s enforcement mandates, whether obtained during an investigation or through any other sources.” This information may include complaint referrals and information in complaint or investigative files but will be shared only “if it is relevant or necessary to the recipient agency’s enforcement responsibilities,” and the sharing of information must be compatible with the purposes of the agency that is collecting the records.
For example, if OSHA learns during an investigation that there are potential victims of unfair labor practices, OSHA may encourage employees who have not already done so to file a complaint with the NLRB. OSHA will then explain the employees’ rights and provide them with the NLRB’s phone number and web address to make such complaints.
Additionally, if an employee files with OSHA an untimely complaint of retaliation, OSHA may then advise the employee to file a complaint with the NLRB. While the OSHA complaint may have expired because there is a 30-day time limit, the NLRB has a six-month time limit for filing such complaints. As a result, employers may end up facing more charges, including charges from both agencies, during an investigation.
2. Coordinated Investigations and Enforcement
The NLRB and OSHA have the right to decide whether to conduct coordinated investigations and inspections. If coordinated investigations occur and there are overlapping statutory violations, each agency may take its own enforcement action.
In practice, employers should assume that if either agency is conducting an investigation into an alleged retaliation and/or complaint of unsafe working conditions, that agency may broaden the investigation to involve the other agency. Employers should consider that statements and admissions made to one agency may be shared with, and impact, the other agency’s course of action.
In order to be prepared for investigations, employers should consider training their employees and supervisors on both the OSH Act and NLRA requirements, as well as employers’ rights when facing OSHA inspections. These rights include: requiring inspection warrants before entering a worksite, accompanying the compliance officer during a walkaround and participation of management (or counsel) in management interviews.
3. Training, Education, Outreach and Unions
The NLRB and OSHA will cross-train their personnel on the respective agency’s practices. As such, the NLRB will train OSHA personnel on what constitutes concerted activity, unfair labor practices, and basic procedures for investigating and adjudicating unfair labor practices under the NLRA. OSHA, in turn, will train NLRB personnel on OSHA standards, recordkeeping and reporting regulations, the general duty clause, and employee rights under Section 11(c) of the OSH Act and other whistleblower provisions. Additionally, the agencies will engage in joint public engagement, outreach, and education (e.g., conferences and events) as well as co-developing policy statements and guidance materials.
As part of their outreach, the agencies released a resource titled “Building Safe & Healthy Workplaces That Promote Worker Voice.” This resource addresses how workers, including those represented by unions, should address health and safety concerns. Notably, it asserts that unions “add tremendous value to health and safety programs at all stages.”
While this MOU did not focus on unionized workers, it is clear that unions are viewed by OSHA and the NLRB as a tool for workers to use in voicing their safety and health concerns. As such, employers that have a unionized workforce will want to be vigilant in complying with the OSH Act and NLRA requirements. The agencies encourage “robust employee participation” even in workplaces without unions. As a result, employers will need to make sure all employees are aware of their rights. Employers must also make sure there are avenues for employees to voice their health and safety concerns.
4. State OSHA Participation
Federal OSHA expects states with their own OSHA plans to participate in “all training and information-sharing activities” established under the MOU.
States will be expected to respond to referrals from the NLRB concerning potential violations of the states’ occupational safety and health standards. This means that federal OSHA and the NLRB will require state plans to engage the public in worker safety and health education, as well as plan conferences and events to raise awareness of employee rights regarding their safety and health.
Additionally, federal OSHA expects state plans to respond to “referrals from NLRB concerning potential violations of the states’ occupational safety and health standards or regulations by conducting investigations in a timely manner.” For employers, this implies that there will be an increase in state participation in monitoring safety and health concerns in the workplace. The push for states to respond to referrals from the NLRB indicates that there will be more pressure on states to rigorously apply their own occupational safety and health standards, which may mean more searches conducted by compliance officers.
Looking Ahead
Going forward, employers can expect to see more interagency coordination between the NLRB and OSHA during investigations. Employers may presume that information collected by one agency will be provided to the other. This highlights the importance of training supervisors not just on preparing for an investigation, but also how to avoid the necessity of an investigation in the first place. This can be achieved by training supervisors to respond to any safety or health related complaint in a timely and effective fashion and communicate with employees to make them feel their concerns have been heard and addressed.
While the two agencies remain separate, there is a clear overlap of enforcement action that will likely lead to more investigations by each agency. As the agencies work to increase worker protection across the board, employers should also work to ensure that their management personnel are trained and up-to-date on the anti-retaliation and whistleblowing provisions of both the OSH Act and the NLRA. This will help them be prepared for investigations by either—or both—agencies.
Jane Heidingsfelder is a partner in Jones Walker’s Labor & Employment Practice Group. She can be reached in New Orleans at [email protected] or 504.582.8306.
Madison Gaines is an associate in Jones Walker’s Labor & Employment Practice Group. She can be reached in New Orleans at [email protected] or 504.582.8579.