NHTSA, NLRB, and OSHA Oh My! The Agencies ARE Ganging Up

9/6/2014

Feeling a bit paranoid these days, especially where government oversight or agency investigations are involved? Your perception of reality is probably being driven less by paranoia and more by the upticks in government activity, and that twitchy sense of more government scrutiny is actually well justified. Just when the Auto Industry was feeling the squeeze of recalls, NHTSA, and other safety related investigations from OEMs down to the lowest tier suppliers, now others are coming after the industry (and other industries). In addition to executive agency actions placing more requirements on contractors, government agencies are practicing sharing and cooperation – and in ways that may not have quite the positive results you might normally expect (or that you might have learned in kindergarten).

While it can be a common misconception to think that the National Labor Relations Board (“NLRB”) deals only with union facilities (or those seeking to unionize), the agency’s reach has never really been that limited. In the past few years the NLRB has been much more assertive in both educating employees (everywhere) about protected concerted activity and aggressive in determining when companies cross the line of being too restrictive (think about narrow options to respond to social media posts, and limited ability to require “nice” behavior or confidentiality from employees).

Now, the NLRB is using another method to broaden its reach. In the most recent example, the NLRB is essentially coaching its staff to be on the look for violations of other laws. In aformal memorandum issued August 8, 2014, the Associate General Counsel suggested that investigations of NLRB charges may also reveal facts that indicate possible violations of other laws, especially the Fair Labor Standards Act (“FLSA”) or Occupational Safety and Health Act (“OSHA”). The memo suggests that the investigator may run across information that would indicate concerns about unsafe work conditions, record keeping, child labor, or failure to properly pay minimum wage or overtime. In addition, the memo highlighted that investigators should be sensitive to information indicating that retaliation might have occurred in response to someone reporting a perceived violation of either OSHA or FLSA.

The NLRB has directed its staff to notify the “charging party that he or she (or their representative) has the right to file a complaint” with the responsible agency. And, if the NLRB learns of a “parallel” investigation, it should coordinate the investigation with the appropriate part of the Department of Labor. The NLRB did have one caution for its staff – noting that its personnel are not expected to be experts with regards to either FLSA or OSHA. Fear not, the Board decided – and proceeded to provide information about how its personnel could access the quick reference guides on the websites of other federal agencies.

Earlier, NLRB had made a point to let OSHA know that people who sought to file retaliation charges, but were out of time under OSHA, might still have time to file charges with the NLRB. And, as another example of why your concerns about increasing government scrutiny may be justified, the OFCCP has proposed a rule that would collect summary pay data from federal contractors – of course, this comes on the heels of the “Fair Pay and Safe Workplaces Executive Order.”

Just remember, it’s not paranoia if they’re really out to get you.

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