Q. Has OSHA issued any new rules addressing employees’ rights to have representation during an OSHA inspection at a private employer’s worksite?
A. Yes. Earlier this month, the Occupational Safety and Health Administration (OSHA) issued a Final Rule that significantly revises OSHA’s longstanding regulations concerning an employee’s right to choose a representative to participate during OSHA’s physical inspection of a workplace. Under the new final rule, employees will be permitted to bring other employees or nonemployee third parties (including nonemployee union representatives) on OSHA walkarounds at union and nonunion workplaces, if these individuals are “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience.” The new rule will take effect on May 31.
Background
Under the current rule and regulation, OSHA allows employees to have a representative during a walkaround inspection of a workplace, but that representative typically has been an employee of the employer. The existing OSHA regulation allows for a third party to participate in the walkthrough inspection but only if that person “is reasonably necessary,” which has been interpreted to include those with formal credentials and safety or health expertise (i.e., industrial hygienists or safety engineers) that would assist the OSHA investigator in conducting the inspection. As such, OSHA investigators have rarely relied on this regulation to have nonemployees participate in the inspection.
Final New Rule
Under the amended new rule, however, nonemployee representative(s) authorized to accompany the OSHA investigator on inspections are not limited to individuals with formal credentials. Instead, the new regulation provides that a third-party representative authorized by employees simply needs to be “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace” by virtue of their “relevant knowledge, skills or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills,” as determined by the OSHA investigator. As stated in OSHA’s Preamble to the Final Rule, this category includes a broad range of third parties, including those from unions or worker advocacy groups. And while the OSHA investigator must find “good cause” to allow a nonemployee third-party to participate in the inspection, OSHA has provided no guidance with respect to how the OSHA investigator is to make this determination apart from the factors listed in the rule. Further, OSHA has clarified that the investigator has significant discretion to determine whether and which representatives may accompany the investigator during the inspections.
Key Takeaways
Given that the new rule will grant the OSHA investigator wide discretion in choosing who is an employee representative, it is difficult to predict at this stage the scope or magnitude of the new rule’s impact on private workplaces.
Nevertheless, one thing remains clear — the new rule will allow third parties, such as union representatives and labor activists, to access private employer workplaces, including at nonunionized worksites. Indeed, OSHA’s FAQs regarding the new rule state that a third-party representative will not be banned from wearing clothes with a union name or logo. Employers, therefore, should anticipate complaints filed by labor organizers and others who seek to gain access to the employer’s private property for reasons other than the inspection itself. Notably, the new rule maintains OSHA’s requirement that the conduct of inspections “preclude unreasonable disruption of the operations of the employer’s establishment.”
Employers also should be mindful of how the new rule could impact the protection of confidential information and trade secrets. Given the broad definition of what constitutes a third-party representative who can accompany the OSHA investigator during an inspection, employers could potentially face a situation in which a direct competitor visits the worksite. Thus, employers should carefully monitor inspection areas to ensure no third-party representative accesses any places that contain confidential information or trade secrets. Moreover, employers could consider requiring a third-party representative to sign a nondisclosure or confidentiality agreement to protect trade secrets or confidential information viewed or learned during the inspection, and to protect against any damages resulting from such disclosure.
The new rule also creates safety concerns, particular at job sites with greater safety risks (e.g., construction sites), since a third-party representative may not be trained properly to visit such sites. Employers should consider whether to provide personal protective equipment (PPE) to the third-party representatives. At a minimum, and consistent with the FAQs, employers should require third-party representatives to comply with the employer’s established and lawful policies and practices, including safety policies, that apply equally to all visitors.
Finally, employers have the option to refuse any third-party representative access to the worksite. In doing so, employers should demand that OSHA provide a search warrant that allows the third party to accompany the investigator, and if OSHA does provide an issued warrant, employers could consider moving to quash such warrant. Of course, employers should be mindful of the practical ramifications for refusing to comply with a warrant, as a negative inference could be drawn for a company’s unwillingness to cooperate in the investigation.
Conclusion There are still plenty of unanswered questions, including whether and how OSHA will implement the new rule at a national, regional, and local level, and whether the rule itself will be enjoined by a court before its effective date of May 31. Employers should plan ahead to ensure they have procedures in place for training management on responding if and when an OSHA investigator seeks to inspect the workplace with a third-party representative.
