OSHA and the NLRB: What Does the New Memorandum of Understanding Mean for Employers?

When federal agencies enter into a Memorandum of Understanding in the context of employment law, they often increase coordination and cooperation by sharing information about employers. On October 31, 2023, Jennifer Abruzzo, General Counsel for the National Labor Relations Board (“NLRB”), and Douglas Parker, Assistant Secretary for the Occupational Safety and Health Administration (“OSHA”), entered into a Memorandum of Understanding (the “MOU”).

The MOU outlines the “interagency cooperation and coordination” between OSHA and the NLRB for “information sharing and referrals, training, and outreach between the agencies” concerning the Occupational Safety and Health Act of 1970 (the “OSH Act”) and the National Labor Relations Act (“NLRA”).

The NLRB and OSHA “may share, either upon request or upon the respective agency’s own initiative, any information or data that supports each agency’s enforcement mandates, whether obtained during an investigation or through any sources to the extent permitted by law.” Information shared “may include complaint referrals and other sharing of information in complaint or investigative files relating to alleged violations of the NLRA and laws enforced by OSHA.”

Federal agencies collaborate all the time, especially in the employment context. What does the MOU really mean for employers?

What the MOU means is a stronger relationship and ramp up of coordination to find employers that violate the rights of employees. If, for example, NLRB agents are on-site for a union election and notice certain workplace hazards or standards that do not comply with the OSH Act, the NLRB may provide information and complaint referrals to OSHA. Or, if OSHA conducts a site-visit after a report of unsafe conditions and learns about possible NLRA violations, a visit from the NLRB may be imminent. In short, if an employer is possibly non-compliant with the OSH Act or the NLRA and is expecting a site visit from either of these federal agencies, that employer should work fast to resolve its areas of non-compliance in order to avoid a second investigation or complaint. Either agency can also inform employees of their rights under either act and share the other agency’s contact information with employees whose rights may have been violated.

This MOU seems par for the course in 2023 based on the recent actions taken by federal administrative agencies, including the NLRB and EEOC, at targeting employers.

Employers must work to maintain compliance with the OSH Act and the NLRA and involve legal counsel as necessary.