OSHA and NLRB Collaborate on Enforcement

​The National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) recently agreed to expand their partnership on legal enforcement.

In a memorandum of understanding that took effect Oct. 31, the two agencies pledged to coordinate on investigations, more broadly share information, conduct cross-training for staff at each agency and step up enforcement of anti-retaliation provisions of federal laws.

"Workplace safety can be a matter of life and death for workers, and so the ability to report workplace hazards without fear of retaliation is critically important," said NLRB General Counsel Jennifer Abruzzo. The memorandum of understanding "will bolster protections for workers to speak out about unsafe working conditions by strengthening coordination between OSHA and the NLRB on our enforcement efforts."

"Everyone should be able to exercise their legal rights in the workplace without fear of losing their job or other forms of punishment," said Doug Parker, assistant secretary of Labor for Occupational Safety and Health. He added that the agreement "will expand both of our agencies' impact and effectiveness in protecting workers who raise concerns about workplace violations or retaliation."

The two agencies will exchange information from complaint or investigative files when it's relevant to the other agency's enforcement area. The NLRB enforces the National Labor Relations Act, which protects workers' union rights, and OSHA enforces the federal Occupational Safety and Health Act, which is devoted to ensuring workplace safety. Both laws permit workers to complain to managers about unsafe or unhealthy working conditions without retaliation.

"The two agencies have been cooperative with each other as far back as 1975," said Shelagh Michaud, an attorney with Nixon Peabody in Providence, R.I. The collaboration "isn't really new. It's really like a clarification or expansion of that."

She said the new agreement continues a trend in the Biden administration to focus more on workers' rights across all federal agencies. In recent months, the Department of Labor has signed similar memorandums of understanding with the NLRB, the Equal Employment Opportunity Commission and the Federal Trade Commission to coordinate more closely with each one on legal enforcement.

Practical Tips for Employers

The information sharing between the federal agencies means employers could risk being investigated by more than one at the same time.

Employers should remember that any communication with OSHA during an investigation, including documents submitted, is subject to a Freedom of Information Act (FOIA) request, said Micah Dickie, an attorney with Fisher Phillips in Atlanta. "Employers should draft position statements and correspondence to OSHA that accurately reflect an employer's position while not containing any inflammatory language that third parties may seize upon," he said.

To prevent legal battles, employers should "accurately describe adverse actions taken against an employee and the reasons for doing so when responding to an OSHA retaliation complaint while refraining from including any extraneous detail that could give rise to a referral to the NLRB," Dickie said. Likewise, "employers responding to NLRB charges should remember to highlight the legitimate, nondiscriminatory reason for the company's actions and avoid in-depth discussions or admissions of safety or health issues at their worksites that could lead to a referral from the NLRB to OSHA."

In internal company records, HR should properly document disciplinary actions and leave out any imprecise or confusing language, Dickie said.

Broader efforts by companies to improve workplace safety can prevent enforcement action by the two agencies. "For employers, the important thing is to focus on working with their employees to ensure that they are doing the best they can for employee morale and working conditions," Michaud said.