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NLRB and Department of Labor: One Hand Washes the Other to Promote Cross-Filed Complaints

Our colleagues at the OSHA Law Blog recently reported that the Occupational Safety and Health Administration of the Department of Labor (DOL) and the NLRB had entered into an agreement whereby OSHA would notify complainants who file untimely OSHA retaliation charges of their right to file an unfair labor practice charge with the NLRB.  NLRB GC MEMORANDUM OM 14-60, May 21, 2014.  (See OSHA Law Blog, OSHA and NLRB Update Referral Agreement.)

Now comes word that the NLRB intends to reciprocate. Supplementing its earlier memorandum, the Board’s General Counsel’s Office reminds the agency’s regional directors that “there may be occasions during the processing of an NLRB charge when it may be appropriate to apprise the Charging Party or a witness of his or her right to contact OSHA and/or the Wage and Hour Division [WHD] of the … [DOL] to discuss the filing of a complaint with those agencies.” (OM 14_77 OSHA Wage and Hour Referral Procedures).  This may occur at any stage of the case intake or investigative process, the Memorandum instructs, whenever the regional office believes an employer may have violated a substantive or anti-retaliation provision of the OSH Act or the Fair Labor Standards Act.

Furthermore, if the NLRB learns during the processing of an unfair labor practice charge that OSHA or the WHD “is handling a parallel investigation into a violation of their statutes, the Region should coordinate case processing with the DOL” by contacting the local DOL Regional Solicitor (not the Labor Department office investigating the alleged DOL violation).

The General Counsel’s Office cautions that Regional personnel are not expected to become experts on the construction of the DOL statutes, and that a referral is appropriate only where the regional officials “believe that a possible violation of the OSH Act or the FLSA present themselves,” but encourages referring to DOL website informational pages and even suggests that NLRB regional offices “develop training vehicles” for their personnel.

Jackson Lewis P.C. © 2017


About this Author

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...

Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...