Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On October 31, 2023, the National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) announced that the agencies have executed a Memorandum of Understanding (MOU) “to strengthen the agencies’ partnership to promote safe and healthy workplaces through protecting worker voice.” The MOU seeks to enable the NLRB and OSHA to “closely collaborate” by more broadly sharing information, conducting cross-training, partnering on investigative efforts and enforcing anti-retaliation provisions. NLRB General Counsel Jennifer Abruzzo and OSHA Assistant Secretary Doug Parker suggested that this MOU is critical in bolstering protections for workers who speak out about unsafe working conditions without a fear of retaliation.
The Halloween announcement comes on the heels of a series of MOUs that the NLRB has signed with other federal agencies such as the Department of Labor’s Wage and Hour Division and the Office of Labor-Management Standards as part of its ongoing interagency coordination initiative to promote a whole-of-government approach to enforcement. The NLRB touts this initiative, which entails close collaboration with federal worker and consumer protection agencies, as a way to “ensure that the government is co-acting and co-enforcing all related laws in the most effective and efficient way” to ensure that workers are fully protected. The NLRB claims that such inter-agency collaboration will minimize employers’ compliance burdens.
In support of its stated purpose to expand information sharing and referrals and training and outreach between the agencies, the MOU cites Section 7 of the National Labor Relations Act (NLRA), the Occupational Safety and Health (OSH) Act generally, and specifically its anti-retaliation provision, Section 11(c). The MOU points out that both the NLRA and the OSH Act protect employees’ right to complain to management about unsafe or unhealthful working conditions. The MOU goes on to prescribe protocols for the exchange of information between the agencies, as well as worker outreach, which include (1) OSHA providing potential victims of unfair labor practices with the NLRB’s contact information, (2) OSHA likewise advising such individuals who file time-barred Section 11(c) complaints that they may still file a charge with the NLRB for six months, and (3) NLRB sharing information with OSHA regarding workers who are currently or likely exposed to health or safety hazards, or to suspected violations of OSHA regulations, and encouraging those workers to contact OSHA promptly. The MOU outlines provisions for protecting the confidentiality and information security of any data shared between the agencies.
Additionally, the MOU envisions opportunities for the NLRB and OSHA to conduct coordinated investigations and inspections “in appropriate cases and to the extent allowable under law.” In cases where there are overlapping statutory violations at issue, the agencies agree to “explore and confer” regarding what enforcement actions are appropriate for each agency to undertake.
Finally, the MOU sets forth agreed-upon practices for each agency to provide reciprocal training and education to appropriate personnel from the other agency. For instance, the NLRB shall train OSHA personnel on what constitutes concerted activity under Section 7 of the NLRA, what constitutes an unfair labor practice (ULP) under Section 8(a) of the NLRA, and on the procedures for investigating and adjudicating ULP charges. Likewise, OSHA will train NLRB personnel on OSHA standards, recordkeeping and reporting regulations, the general duty clause, and employee rights under Section 11(c) of the OSH Act. The agencies will also engage in joint public engagement, outreach and education in person and on social media regarding the laws that each agency enforces.
The MOU suggests that state plans are expected to respond to referrals from the NLRB concerning potential violations of state OSHA plan regulations and will be encouraged to participate in the training and information-sharing activities agreed to by the agencies. The MOU takes effect immediately and expires five years from the effective date unless superseded before then.
How should employers prepare?
While the MOU concedes that it does not diminish or otherwise affect the authority of either agency, it does raise concerns about how employers should prepare for individual OSHA and NLRB inspections going forward, particularly where there is overlap between the jurisdiction of each agency, not to mention joint coordinated inspections involving both agencies. Given that OSHA and NLRB are conducting cross-training for their personnel regarding how to conduct investigations under the other agency’s standards, we should expect OSHA and NLRB inspectors to expand the scope of their inquiries accordingly. Therefore, we recommend that employers similarly cross-train their personnel on the relevant aspects of OSH Act and NLRA compliance, as referenced in the MOU, so that they are prepared to navigate inspections implicating both regulatory regimes. In addition, employers can establish advance protocols to ensure that appropriate representatives are available in the event that an OSHA inspection converts into an NLRB inspection, and vice-versa. Indeed, the MOU increases the pressure on OSHA inspectors to allow non-affiliated union representatives to join their walkaround inspections, further challenging what is reasonably necessary in the context of the agency’s proposed walkaround rule.
The MOU does not provide for or require notice to an employer or other providing party when the information is shared. Employers should assume that information provided to one agency is provided to the other.
Finally, employers should ensure that management is trained on the anti-retaliation provisions contained in the OSH Act and NLRA. OSHA and NLRB signed a similar MOU in January 2017; however, we can expect increased activity under the agencies’ most recent MOU in light of the Biden Administration Task Force on Worker Organizing and Empowerment’s February 2022 report supporting union organizing and collective bargaining efforts.
Littler will continue to monitor this effort for any new enforcement trends and practical implications resulting from the execution of this MOU.