NLRB to Refer Possible Violations to OSHA and Wage and Hour

You probably remember when I discussed how OSHA was referring claimants to the NLRB who had missed their statute of limitations to file an OSHA charge (“OSHA Actively Encouraging Employees to File Charges with the NLRB” – Employment Services Alert issued May 22, 2014). Thankful to OSHA for doing it a solid, the NLRB will now refer cases back to OSHA as well as to the Division of Wage and Hour.

According to Anne Purcell, Associate General Counsel of the NLRB, information obtained in NLRB investigations could suggest the presence of OSHA or FLSA violations if witnesses disclose facts indicating that an employer required employees to work in unsafe or unhealthy conditions or failed to properly pay employees for all the hours they work.

I fully anticipate Board employees to question workers about their pay and the safety of their working conditions while investigating alleged unfair labor practice charges. Board employees are not trained in the nuances of wage and hour law or the OSH Act, yet will make a preliminary determination whether either may have been violated. To quiet my cynicism of the NLRB being a one-stop-shop (which it doesn’t), Purcell said NLRB employees are not expected to be experts in the construction of the FLSA or the OSH Act, and they “should refer cases only where they believe that a possible violation of the OSH Act or FLSA presents itself.” So basically, solicit the information from employees and err on the side of caution by referring most cases to OSHA or Wage and Hour.

This is even more reason, though none was needed, that all companies, both union and non-union, must make sure all of their employment practices abide by all labor and employment laws.

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