Representation Rights Under the OSH Act
On April 1, 2024, the U.S. Occupational Safety and Health Administration (OSHA) published its final rule re-interpreting Section 8(e) of the Occupational Safety and Health Act (OSH Act). Section 8(e) specifies that in the event of an on-site OSHA inspection, “a representative of the employer and a representative authorized by [its] employees shall be given an opportunity to accompany [OSHA] during the physical inspection of any workplace [mainly the “walkaround” phase of the inspection] … for the purpose of aiding the inspection.”
The final rule, which is set to go into effect May 31, 2024*, barring a successful court challenge, revises 29 CFR 1903.8(c), the regulation that implements Section 8(e) of the OSH Act. We wrote about the final rule in DOL’s Final Rule Allows Third Parties to Participate In OSHA Walkaround Inspections.
Employee Representation Rights Expanded by New Rule
Under the revised regulation, “The representative(s) authorized by employees may be an employee of the employer or a third party.” The words in italics are new. Previously, the regulation specified the employee-authorized representative “shall be an employee(s) of the employer” or, if OSHA’s Compliance Safety and Health Officer (CSHO) deemed necessary, a third party “such as an industrial hygienist or a safety engineer.”
The revised regulation expands on which third parties may qualify as an employee-authorized representative. Now, outside parties, including union representatives—even if the employer is not unionized—may join inspections “if, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).” (Emphasis added.)
Key Takeaways from OSHA’s Guidance on New Rule
On April 8, 2024, OSHA issued guidance on the revised Walkaround Rule in the form of Frequently Asked Questions (FAQs).** Below are key takeaways for employers from the FAQs applicable to third-party employee representatives:
Challenging a designated representative. An employer may object to a designated representative by raising concerns with the CSHO. Concerns may include whether (1) the representative has been “authorized by employees”; (2) “good cause” has been shown why including the representative is “reasonably necessary”; and (3) the representative has relevant knowledge/expertise, skills, or experience, and/or would aid the inspection. Per the FAQs, “Third-party representatives are ‘reasonably necessary’ only when they will make a positive contribution to a thorough and effective inspection.” The CSHO is authorized to decide challenges to designated representatives and whether and which representative(s) may accompany the walkaround.
Preventing business disruption. An employer has the right to prevent an inspection from causing an “unreasonable disruption of [its] operations.” Despite this helpful statement, the FAQs also provide that a third-party representative will normally not be prevented from wearing clothing with a union name or logo.
Preventing inspection interference. The conduct of a representative cannot interfere with a fair and orderly inspection, and a representative whose conduct interferes “may be denied from accompanying in the inspection.” The representative “shall be advised that, during the inspection, matters unrelated to the inspection shall not be discussed with employees.” Further, union solicitation, “such as handing out union authorization cards,” is behavior that could interfere with the inspection.
Protecting trade secrets. An employer has the right to limit entry of a representative into workplace areas that contain trade secrets. As a practical matter, employers should consider identifying all areas of the workplace containing trade secrets. Then, if and when an inspection takes place, the employer can notify the CSHO that a representative is not allowed access to those areas.
Requiring non-disclosure agreement. An employer may require a representative “to sign a reasonable confidentiality agreement, limited to the use of the confidential information learned in the inspection, on the same terms as it requires of other visitors.”
Requiring compliance with policies. A representative generally has to comply with the employer’s “established lawful rules and policies as long as [they] apply equally to all visitors.” Accordingly, employers will want to provide a representative with all policies applicable to visitors, such as those related to:
- Personal protective equipment;
- Areas where phones and cameras cannot be used;
- Safety orientation and training for visitors;
- Emergency evacuation procedures; and
- Waivers or releases from liability for any injury that may occur on site.
Visitors, including a representative, can be required to acknowledge receipt of the policies. Employers should consider taking this opportunity to update their rules and policies applicable to all visitors.
Employers should be wary of outside parties, including union organizers, trying to exploit the revised Walkaround Rule to gain access to employer worksites. If you have questions or concerns about the new rule, contact any member of the Maynard Nexsen Employment and Labor Law team.
* In states that operate their own occupational safety and health programs under an OSHA-approved plan (such as California, North Carolina, South Carolina, and Tennessee), the revised Walkaround Rule or regulations imposing similar requirements will go into effect between May 31, 2024 and November 30, 2024.
** OSHA’s website states the FAQs will be updated periodically. Accordingly, employers should check the FAQs on a regular basis for updated guidance.
