Michael P. Addair
Dinsmore & Shohl LLP 

Section 11(c) of the Occupational Health and Safety Act of 1970 (“OSH Act”), 29 U.S.C. §660(c), prohibits employers from “discharg[ing] or in any manner discriminat[ing] against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the OSH] 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 [the] Act.” 

Employees who have been allegedly discharged or otherwise discriminated against for making health and safety complaints or testifying against the company in an OSHA proceeding may file a complaint with OSHA, which is then obligated to investigate the Complaint and file an action against the employer in federal district court if the complaint has merit.  Complaints filed pursuant to Section 11(c), however, must be filed within 30 days after the alleged discriminatory act. Accordingly, up to this point, employers could generally breathe a sigh of relief when thirty days had passed without the filing of an 11(c) complaint after an employee’s discharge or other questionable incident.  OSHA estimates that approximately 300 cases per year are screened out by OSHA for late filing, along with another 300 potential complainants who decide not to file charges upon learning that the time has elapsed for doing so.

In March of 2014, OSHA signed a Memorandum of Understanding (“MOU”) with the National Labor Relations Board (“NLRB”) agreeing to refer late-filing complainants to the NLRB, which operates under the National Labor Relations Act’s (“NLRA”) much lengthier 6-month statute of limitations for whistleblower claims.  The relevant provisions in the NLRA under which these safety and health whistleblower claims will be considered by the NLRB are found in Sections 7 and 8.  Section 7 prescribes that employees have the
right to engage in concerted activities for the purposes of collective bargaining “or other mutual aid or protection.”  Section 8 prohibits unfair labor practices that restrain or coerce employees in the exercise of the rights granted by Section 7.  The NLRB and OSHA will
consider most health and safety complaints/activities to be concerted action for the purpose of “other mutual aid or protection” since health and safety issues generally affect more than one worker on the jobsite. 

Under the MOU entered into by OSHA and the NLRB, OSHA agents who handle whistleblower claims will be trained to inform late-filing complainants that they may be able to file a charge with the NLRB,  that the NLRB time limit to consider claims is longer than OSHA’s, and that they should contact the NLRB as soon as possible. This is significant for employers because whistleblower complaints filed under the OSH Act were previously dismissed or not filed at all if the 30-day statute of limitations was exceeded. 
Employers will now face a much longer 6-month period of possible exposure to whistleblower investigations/actions.