Contributors

Eric P. Weiss

Principal

On October 31, 2023, the National Labor Relations Board (“NLRB”) and the Occupational Safety and Health Agency (“OSHA”) executed a Memorandum of Understanding (“MOU”) that aims to promote safe and healthy workplaces and protect workers who speak out about unsafe working conditions. As a result, employers must prepare for increased safety and health enforcement efforts by both NLRB and OSHA. The goal of this collaboration is to strengthen health and safety protections for workers. Among other matters, the MOU sets forth a process for information sharing, training, and outreach between the NLRB and OSHA.

There are a couple of examples of how this collaboration could negatively impact employers. First, the collaboration creates a likelihood that employers will be subject to investigations and enforcement efforts from both agencies. For example, during an investigation or site inspection, OSHA has the right to speak with non-management employees and can ask what they think about safety complaints. If the interview reveals mistreatment by the employer, OSHA can now share the information with the NLRB which can result in a further investigation and potential citation by the NLRB for violation of the National Labor Relations Act (“NLRA”).

Similarly, employers may be subject to whistleblower complaints by the NLRB if an employee provides harmful information to OSHA during an investigation or site inspection and is thereafter disciplined by the employer for providing the information. Again, OSHA can now share the information with NLRB which can take action against the employer for violating whistleblower laws and regulations.

Additionally, the MOU allows OSHA to provide potential victims of unfair labor practices with contact information for NLRB personnel and, in certain instances, advise them that they may file charges with the NLRB. The NLRB, likewise, will provide workers potentially exposed to health or safety hazards or subject to violations of OSHA laws with contact information for OSHA personnel, as well as information related to potential violations of laws that OSHA enforces. The agencies will also work together to facilitate referrals from those state agencies that operate their own occupational safety and health programs under an OSHA-approved plan (State Plans); State Plans will also respond to NLRB referrals regarding potential violations of the particular state’s safety and health standards or regulations.

In some cases, the NLRB and OSHA can schedule and conduct coordinated investigations of an employer for the purpose of determining whether the employer has violated either the OSHA laws or the NLRA.

Lastly, under the MOU the agencies will provide necessary training to the other agency so that investigators for each are fully cognizant of potential violations of OSHA and the NLRA during their investigations.

As a result of this collaboration, employers must implement and communicate comprehensive policies regarding employee relations, workplace investigations, and documentation. Supervisors must be trained and educated on the proper procedures for handling employee complaints. And, as always, it is crucial for employers to create a cooperative business environment to improve employee morale and maintain a safe workplace. Ensuring that you have documented and implemented safety and health programs may save your workplace from the concerted enforcement efforts of OSHA and the NLRB.

The collaboration can expose employers to a greater number of enforcement actions and penalties by both agencies. Employers should seek the advice of experienced labor and employment counsel when dealing with workplace issues that may present both violations of the NLRA and of laws that OSHA enforces, and/or when dealing with coordinated agency investigations or enforcement actions.