OSHA to Refer Time-Barred Whistleblower Claims to the NLRB
On May 21st, the National Labor Relations Board (NLRB) announced that OSHA will begin referring time-barred whistleblower claims (brought pursuant to Section 11(c) of the OSH Act) to the NLRB, which has a longer limitations period, for investigation and potential prosecution. In order to facilitate this collaborative program, OSHA agents have been provided with talking points briefly describing the NLRB and providing other information to use when referring untimely Section 11(c) complainants.
The statute of limitations for a whistleblower claim brought pursuant to Section 11(c) is only 30 days, whereas the limitations period for a similar claim filed with the NLRB is 6 months. OSHA estimates that approximately 300 untimely whistleblower claims are screened out each year for missing the 30-day filing deadline. Many of these claims, however, although late under the OSH Act, are timely under the National Labor Relations Act (NLRA).
OSHA’s Assistant Secretary Dr. David Michaels further pointed out in recent Congressional testimony that Section 11(c)’s 30-day deadline “is especially problematic because it begins to run when the employee learns about the adverse employment action, not when the employee learns that the action was motivated by an unlawful retaliatory purpose.”
Although OSHA now enforces an additional 21 whistleblower statutes, cases filed under Section 11(c) make up more than half of OSHA’s whistleblower program caseload. Last year, 60 percent of the new whistleblower cases received by OSHA were docketed under Section 11(c). Notably, Section 11(c) provides that “[n]o person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.”