By Leah Shepherd
The U.S. Department of Labor (DOL) announced a new proposed rule to broaden who can be authorized to accompany Occupational Safety and Health Administration (OSHA) compliance officers during workplace inspections. Under the proposed rule, released on Aug. 29, employees may authorize an employee or a non-employee third party, if the OSHA compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection. The third party would need the inspector’s permission, but not the employer’s permission.
The proposal clarifies that these third-party representatives would not be limited to industrial hygienists or safety engineers. They may be deemed reasonably necessary because they have skills, knowledge or experience that may help inform the compliance officer’s inspection. For example, they could have experience with particular hazards, workplace conditions or language skills that could improve communications between OSHA representatives and workers.
“This proposal aims to make inspections more effective and ultimately make workplaces safer by increasing opportunities for employees to be represented in the inspection process,” said Assistant Secretary for Occupational Safety and Health Doug Parker.
The federal Occupational Safety and Health (OSH) Act gives the employer and employees the right to have a representative authorized by them accompany OSHA inspectors to aid an investigation.
“Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards,” the proposed rule states. OSHA is seeking public comments on the criteria and degree of deference the agency should give to employees’ choice of representative in determining whether a third party can participate in an inspection. Comments can be submitted by Oct. 30.
Pushback from Employers
Employers are concerned that union representatives may use safety inspections as a way to reach certain workers and garner more union support, said John Surma, an attorney with Ogletree Deakins in Houston. “The presence of a union agent at a nonunion workplace would immediately change the nature of the inspection from one focused on workplace safety to one driven by the union’s agenda,” said Mark Freedman, vice president of employment policy for the U.S. Chamber of Commerce in Washington, D.C.
“While much of the focus is on the union representatives that could be present, the way the proposed rule is drafted it could include personal injury lawyers, the experts for personal injury lawyers, lobbyists and legal advocates for public interest groups,” Surma said. “You would have people who have a vested interest in making a case against the employer due to tragic circumstances in the workplace.” OSHA inspections often follow an incident like a life-threatening injury or fatality.
The proposed rule would “give the union the ability to speak with the employees and get further information during the walkaround,” said James Sullivan, an attorney with Cozen O’Connor in Washington, D.C. “It’s not about safety.” Employers also have concerns about protecting trade secrets from discovery by nonemployees, Surma said. “There is a process for protection of trade secrets,” he noted.
Under the proposal, the OSHA inspector would still have the authority to prevent an individual from participating in a walkaround inspection if their conduct interferes with a fair and orderly inspection or the employer’s right to limit entry into areas of the workplace that contain trade secrets. Nevertheless, “the risk now is an uninformed employer may not be careful enough that outsiders are not with that OSHA inspector” in areas with trade secrets, Sullivan said. “They could be bullied or intimated into allowing somebody to be exposed to that trade secret area.”
Employers should “be concerned about this proposed rule because, at least until now, the agency has conflated the question of whether it is reasonably necessary to bring along a third party with the question of whether that third party is merely capable of making a positive contribution to a thorough inspection,” said Taylor Johnson, an attorney with Keller and Heckman in Washington, D.C.
The proposed rule has some critics in Congress. “This [proposal] has absolutely nothing to do with keeping workers safe,” said U.S. Rep. Virginia Foxx, R-N.C. “OSHA giving the green light to union operatives and activists to infiltrate nonunion worksites during safety inspection walkarounds is blatantly intended to give unions access to employer private property and aid in organizing efforts.” However, Jordan Barab, former deputy assistant secretary for OSHA, said, “The goal of OSHA’s revised walkaround policy is not to aid union organizing, but to help workers come home alive at the end of the day. Especially workers who don’t have unions. Even where there is no union organizing campaign.”