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Two for One – Bring One Employment Complaint, Get the Second Free?

Peter J. Richter

September 2, 2014

Employers should take note that recent initiatives by two key federal agencies signal a joint effort to facilitate employment complaints, and they may even require an employer to defend simultaneous complaints. First, the Department of Labor (DOL) announced that the Occupational Safety and Health Administration (OSHA) had entered into an agreement with the National Labor Relations Board (NLRB) to promote the filing of certain employee complaints with the NLRB. In particular, in the event that an employee’s complaint was filed too late to process under the Occupational Safety and Health Act, OSHA will take steps to notify the employee that he or she may still be able to file an unfair labor charge with the NLRB over the same conduct. For its part, on August 8, the NLRB announced that it is also taking steps to advise employees who bring charges before the NLRB that they might also want to discuss their complaints with OSHA or another branch of the DOL. According to the Memorandum issued by the NLRB’s Office of the General Counsel:

At any stage of the case intake or investigative process, a witness may divulge facts that suggest that an employer may have committed a possible violation of the safety and health provisions of the Occupational Safety and Health Act (OSH Act) or the fair wage, recordkeeping, and child labor provisions of the Fair Labor Standards Act (FLSA) . . .  . If the Region believes that an employer may have violated a substantive or anti-retaliation provision of the OSH Act or the FLSA, the Board agent should notify the charging party that he or she (or their representative) has the right to file a complaint with OSHA or WHD, respectively.

See OM 14-77 OSHA Wage and Hour Referral Procedures. If successful, these new initiatives could result in employers being required to simultaneously defend complaints before different governmental agencies. Accordingly, it will be more important than ever that employers quickly and diligently respond to any employment related claim or potential claim.

If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at prichter@stroudlaw.com or (608) 257‑2281 or your Stroud attorney.


DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.