More Federal Agency Cooperation – the NLRB and OSHA

As we have noted over the past several months, including in our September 2023 E-Update, the federal workplace agencies have been entering into Memoranda of Understanding that will allow them to cooperate on workplace investigations, resulting in an expansion of possible liability for employers. The latest agreement is between the National Labor Relations Board and the Department of Labor’s Occupational Safety and Health Administration.

In the past, these agencies did not work together, meaning that an agency’s investigation was limited to the laws it enforced without regard to potential violations of other laws enforced by other agencies. The various MOUs now enable these agencies to partner on investigation and enforcement. In particular, the NLRB has been aggressive in piggybacking on worker complaints about violations of pay or discrimination laws to find violations of workers’ rights to engage in concerted activity under the National Labor Relations Act. And now that has been expressly expanded to issues about workplace health and safety.