On October 31, 2023, the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) published a joint memorandum of understanding (MOU) that details “a process for information sharing and referrals, training, and outreach between the agencies” regarding the laws they enforce, including but not limited to their anti-retaliation provisions and whistleblower protections.
The memo suggests the agencies should train each other’s employees on the laws they respectively enforce. Here is what that means for California workers.
What Does the Joint Memo Mean for California Employees?
In the memorandum, the agencies stress that they may, upon request or their initiative, share “any information or data that supports each agency’s enforcement mandates, whether obtained during an investigation or through any other sources to the extent permitted by law.”
The procedures outlined in the memorandum also contemplate the possibility of “coordinated investigations and inspections,” including:
Section 11(c) (1) of the OSH Act provides: “No 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.” If an employee believes that they have suffered a violation of section 11(c), they may file a complaint with OSHA within thirty days of the violation. If the Secretary of Labor determines that section 11(c) has been violated, the Secretary, represented by a Regional Solicitor’s Office, files suit in a United States district court, whose decision is reviewable by a United States court of appeals.
In addition to enforcing section 11(c) of the OSH Act, the Secretary of Labor has delegated to OSHA the responsibility for investigating and enforcing various statutory whistleblower provisions. OSHA’s Whistleblower Protection Program enforces protections for employees who suffer retaliation for engaging in protected activities under more than 20 federal laws. In addition to workplace health and safety, OSHA administers whistleblower provisions in federal laws related to transportation services, environmental protection, fraud and financial matters, health insurance, consumer product safety, motor vehicle safety, and food safety.
The agencies explain the memorandum is not “intended to diminish or otherwise affect the authority of either agency to implement its respective statutory functions.”
However, to what extent does this memorandum affect enforcement practices at either agency? Time will tell. For employers dealing with an OSHA investigation or NLRB complaint, the agencies’ combined work may help support California employee claims that they have been retaliated against for reporting unsafe workplaces statewide.
What Can You Do If You Believe You Are Being Retaliated Against for Reporting Workplace Safety Concerns in California?
Contact Aryeh Leichter, the Leichter Law Firm, APC founder, and employment law attorney in Los Angeles County today to discuss the legal remedies that may be available for your unique workplace circumstances, starting with a free consultation by calling (818)-915-6624 or contacting the firm online.