New Memorandum of Understanding Between OSHA and the NLRB Will Drive Coordinated Enforcement Efforts

By Kimberly Richardson and Eric J. Conn

On October 31, 2023, the Occupational Safety and Health Administration (OSHA) and the National Labor Relations Board (NLRB) signed a new Memorandum of Understanding (MOU) to coordinate investigations and other enforcement activities. The agencies’ coordinated enforcement applies not only to protections afforded to employees under the Occupational Safety and Health Act (OSH Act) and the National Labor Relations Act (NLRA), but it also applies to the 20 plus whistleblower laws that OSHA is charged with enforcing. The OSH Act and the NLRA both include protections for workers who complain to management about unsafe or unhealthy working conditions.

The purpose of the MOU is to:

“facilitate interagency
cooperation and coordination between the [NLRB] and [OSHA] by
establishing a process for information sharing and referrals, training, and outreach between
the agencies concerning the [NLRA], 29 U.S.C. 151 et seq., the
[OSH Act], including, but not limited to, its
anti-retaliation provision, section 11(c), 29 U.S.C. 660(c), and any current and future
statutory protections which OSHA is charged with enforcing, including various
whistleblower provisions.”

Under the new MOU, OSHA and the NLRB agreed to the following:

• Information Sharing. OSHA and the NLRB and OSHA may, either upon request or upon one of the agency’s own initiative, share information or data that supports enforcement mandates regardless of whether the information or data was obtained through investigations or from other sources.
• Coordinated Investigations and Inspections. Where OSHA or NLRB suspects there are overlapping statutory violations at issue, they will coordinate investigations and inspections with the other “in appropriate cases and to the extent allowable under law.”
• Informing Employees About Their Rights. The MOU provides guidance for OSHA and NLRB staff on how to inform complainants and charging parties of their rights under the NLRA and any act enforced by OSHA, and how to contact the appropriate agency for further assistance.
• Cross-Training Agency Employees. Each agency will provide training and education to appropriate personnel from the other agency. Employees of the various approved State OSH Plans (e.g., Cal/OSHA or Michigan OSHA) may also be invited to attend the training events.
• Regular Meetings and Consultations on Other Activities. The agencies agree to hold regular joint meetings to further enhance their understanding and cooperation. OSHA and the NLRB will also consult with each other on policy issues, rulemakings, and litigation that may affect related enforcement.
• Public-Facing Outreach. OSHA and the NLRB will, when appropriate,  jointly engage in public-facing outreach efforts, such as posts on social media and co-developing joint policy statements and other guidance materials.  Notably, the agencies recently published a joint resource — Building Safe & Healthy Workplaces by Promoting Worker Voice — which provides guidance for creating and maintaining safe workplaces.

This MOU is Different than Prior MOUs Between These Agencies

The newly issued MOU is actually the third MOU between the OSHA and the NLRB, all of which were intended to strengthen and increase the agencies’ collaboration and coordination when enforcing workers’ rights and safety.  The first OSHA/NLRB MOU, which was executed in 1975, established a protocol for the agencies to refer matters to each other, but stated that enforcement actions to protect worker safety and health activities should primarily be taken by OSHA.

The second OSHA/NLRB MOU, executed in 2017, facilitated additional coordination between the agencies and established a process for information sharing and referrals, but it was limited only to OSHA’s enforcement of Section 11(c) of the OSH Act, which prohibits retaliation against employees for exercising any right under the OSH Act, such as complaining about health and safety conditions or participating in an OSHA inspection. By contrast, the new MOU expands the scope to include any of the 20+ whistleblower laws for which OSHA is charged with enforcing.

Intersection of the new MOU and Other Labor Policies

In addition, this new OSHA/NLRB MOU comes on the heels of various agency actions that blur the lines between traditional workplace safety and labor and employment laws.  For example, on August 30, 2023, OSHA issued a notice of proposed rulemaking for a “Worker Walkaround Representative Designation Process” Rule, which would expand the circumstances when non-employee, third-parties — including union organizers, community activists, plaintiffs’ attorneys, etc. — could accompany OSHA inspectors during enforcement inspections at employer worksites.  Employees would be able to select the third-party, and that person need not have specialized health and safety credentials or expertise or otherwise have a relationship with the employer or the subject workplace, so long as the third-party’s participation is deemed reasonably necessary by an OSHA compliance officer.

On October 26, 2023, the NLRB changed its definition for joint-employer status under the NLRA.   Under the new rule, a company may be considered a joint employer if it possesses the authority to control one or more of the employee’s essential terms and conditions of employment, which includes working conditions related to safety and health. This could become an issue, for example, on a multi-employer worksite where one company requires another company to enforce cardinal safety rules. Under the new definition, the NLRB may conclude that a company becomes a joint employer when it requires another company to enforce specific cardinal safety rules, because doing so is an exercise of control over an essential term and condition of employment for those employees. Once it is determined that a company is a joint employer, then it may have a duty to collectively bargain with a labor union.

In short, increased agency coordination as a result of this MOU, coupled with other recent agency actions, could result in unions having greater leverage when engaging in collective bargaining or engaging in organize campaigns

Employer Take-Aways

In light of NLRB’s and OSHA’s the increased collaboration and commitment to coordinated enforcement, we recommend employers consider taking the following actions to better manage legal and regulatory risks:

• Make sure EHS professionals, managers, and other supervisors know how to prepare for and manage OSHA inspections.
• Review information before it is shared with OSHA and prepare managers and supervisors for OSHA interviews. The MOU does not require the agencies to notify employers when they share employers’ information with each other, so employers should always assume the agencies are sharing their information.
• Train managers and supervisors on OSHA and NLRA protections, so they can reinforce overall compliance with the OSH Act and NLRA. In addition, well-trained personnel are better positioned to spot potential issues and proactively ask for support/help when needed.
• Establish a strong system to manage and respond to employee workplace safety concerns so employers can promptly and properly address any issues raised by employees.
• Engage a lawyer if discipline is anticipated for any worker who has also complained about working conditions.