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Stale OSHA Whistle-Blowing Claim May Have Life with NLRB
 

By Allen Smith  6/4/2014
 

Whistle-blowing complaints that are too late for the Occupational Safety and Health Act’s (OSH Act) 30-day statute of limitations could still be filed under longer periods allowed by the National Labor Relations Act (NLRA), according to a May 21, 2014, letter from Anne Purcell, associate general counsel for the National Labor Relations Board (NLRB), to all board regional directors.

Occupational Safety and Health Administration (OSHA) agents will be provided with talking points encouraging OSH Act complainants to contact the NLRB when their whistle-blower claims are untimely under the OSH Act.

Longer Statute of Limitations

David Michaels, assistant secretary for occupational safety and health for the U.S. Department of Labor, testified before Congress on April 29, 2014, that a longer statute of limitations was needed for OSH Act whistle-blower claims. He said the OSH Act’s 30-day statute of limitations is too short and should be lengthened to match the statute of limitations for newer whistle-blower laws, which, like claims under the NLRA, typically have 180-day statutes of limitations.

There are approximately 300 to 600 untimely OSH Act whistle-blower claims each year, Purcell noted.

“It is likely that some of these cases may also raise claims arising under the [NLRA]; for example, instances of employer retaliation for group complaints concerning unsafe working conditions,” she said. “These complaints may still be timely under our six-month statute of limitations.”

Talking Points

The talking points to be distributed to OSHA agents will note that:

  • OSHA recommends complainants of untimely OSH Act claims contact the NLRB as soon as possible to inquire about filing a charge alleging unfair labor practices.
  • The time limit to file a charge with the NLRB is six months from the unfair labor practice.
  • The NLRB is responsible for enforcing employee rights under the NLRA. The NLRA protects employee rights to act together to try to improve working conditions, including safety and health conditions, even if the employees aren’t in a union.
  • OSHA may not determine whether individuals are covered by the NLRA. Individuals should contact the NLRB to discuss their rights under the NLRA.
  • The NLRB may be reached toll-free at (844) 762-6572.
  • The nearest NLRB field office may be located at www.nlrb.gov/who-we-are/regional-offices.

Similar information will be included in OSHA’s letters administratively closing untimely whistle-blower charges.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

 

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