In late 2023, the National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) released a new Memorandum of Understanding (MOU). The MOU is meant to strengthen information sharing and collaboration between the two agencies regarding to workplace violations.
The memorandum contains a LOT of information, so let’s go through and see what the MOU contains and, more importantly, how it affects employers.
What exactly does this MOU do?
The new provisions of the MOU provide that the NLRB and OSHA will collaborate more closely to promote health and safety in the workplace. This includes sharing information, conducting cross-trainings between the agencies, and partnering on investigations.
In terms of information sharing, either agency may receive information from the other in order to enforce their respective laws. This can be done either by request or by an agency’s own initiative. In other words, an OSHA representative either can ask for information from the NLRB, or the NLRB can affirmatively share the information if they think it’s necessary.
The agencies may provide any information that’s discovered during an investigation or by any other lawful means. However, this information must be both relevant and necessary for an agency to promote their enforcement responsibilities. This means that an agency cannot hand over indiscriminate information on an employer if the information does not help either agency enforce the law.
In addition, the agencies also have mandatory information sharing responsibilities. For example, an OSHA representative must refer potential victims of unfair labor practices to the NLRB. The OSHA representative also must advise people who file an untimely whistleblower complaint under the Occupational Safety and Health Act (OSH Act) to re-file with the NLRB.
Furthermore, OSHA representatives now must inform alleged victims that the time limit to file a whistleblower complaint is six months longer under the National Labor Relations Act (NLRA) than under OSHA. Thus, someone can still file a complaint with the NLRB even if they fail to file with OSHA on time.
Along with the information sharing requirements, the MOU provides that the two agencies are permitted to cooperate on investigations and enforcement of labor violations. If there is an overlapping violation, meaning there is a violation that either the NLRB or OSHA could enforce, both agencies are permitted to coordinate the enforcement actions each agency will undertake. This means that an employer can be punished under both the OSH Act and the NLRA.
These new rules took effect on October 31, 2023 and will remain in effect for the next five years.
But why exactly is this being done?
The alleged goal of this new policy is to promote workplace health and safety by providing more ways for workers to report violations and by offering workers more protection from retaliation.
Despite this alleged goal, the MOU takes an almost militant approach towards employers. For instance, the agencies now have a responsibility to refer people to the other if a violation is merely suspected, making it more likely that employers will become subjected to unnecessary and time-consuming investigations.
Another provision of the information sharing requirement that is potentially harmful to employers states that either agency can share employer information externally, meaning that the information can be given to others outside of the NLRB and OSHA. The provision provides for safeguards, such as requiring a federal court order or permission from a federal entity, yet also provides that information can be shared externally through an agency’s written authorization. Thus, there is broad discretion for either agency to provide employer information to others outside of the NLRB and OSHA.
Moreover, the provision on overlapping violations creates an unfair power dynamic in which an employer can be punished by two different agencies in two different ways for a single violation. This dynamic is meant to function as a way for the agencies to consolidate their resources yet actually functions as a money-making tool for each agency to collect fines.
So, while the goal of the MOU is supposed to be protecting workers, it actually works to the detriment of employers.
So, what do I have to look out for?
In light of the MOU and its provisions, employers should take the following steps to make sure that their business is protected.
First, make sure that you are compliant with both the OSH Act and the NLRA so that you’re not exposing your company to penalties from both OSHA and the NLRB. This may include consulting with legal counsel on whether your business is compliant.
Next, employers should hold trainings on these new rules and how to be overall compliant. Training provides necessary information to your employees and managers on both agencies and their enforcement policies. In fact, the agencies have released a tool on Building Safe and Healthy Workplaces by Promoting Worker Voice to inform businesses of the collaboration between the agencies and to help businesses become compliant. Whether you use the agencies’ training is up to you, of course.
Finally, make sure to actively listen to workers and hear their constructive criticism so that you’re able to consider every reasonable way to improve working conditions. By being proactive, you likely can prevent some unnecessary government intervention and promote a safe and comfortable work environment.
These new rules may seem daunting, especially in connection with what may follow if you’re not compliant. However, with the right training and the right advice, you can keep your business compliant and avoid a joint investigation by both the NLRB and OSHA.
If you have questions about this or any other labor or employment issue, feel free to reach out at info@coppolalegal.com or 716.839.9700. We’d be happy to speak with you.
