On April 1, 2024, OSHA published its new rule permitting employees to designate third parties, such as union officials, worker advocacy organizations and attorneys, to represent them during OSHA inspections. This means that an OSHA compliance officer inspecting a nonunion workplace may now be accompanied by a union official who does not work for the employer being inspected. Under the prior regulation, employees were permitted to designate a nonemployee to represent them during OSHA inspections, but third parties were limited to professionals, such as safety engineers or industrial hygienists. The rule is effective on May 31, 2024.
There is not a set number of employees or even a majority required to authorize a third party employee representative. The authorization process is informal and the compliance officer exercises significant discretion. See OSHA's FAQ on the rule.
The amended regulation provides that if employees designate a representative for the inspection that is a third party, the compliance officer is to determine whether "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)." 29 CFR Section 1903.8(c). If the compliance officer determines that this broad and subjective standard is met, the third party is to participate in the inspection.
As provided in OSHA's Field Operations Manual, the compliance officer "shall ensure that employee representatives are afforded the opportunity to participate in all phases of the inspection." The various aspects of an OSHA inspection include an opening conference with the compliance officer to discuss the scope of the inspection, the compliance officer's walkaround inspection of the workplace, the compliance officer's employee interviews and a closing conference during which the compliance officer discusses preliminary findings. Employee representatives may also participate in the employer's conference with OSHA area officials to discuss the potential settlement of any citations issued.
The regulations provide that compliance officers may "deny the right of accompaniment under this section to any person whose conduct interferes with a fair and orderly inspection." 29 CFR Section 1903.8(d). How this will apply in practice to employee representatives who attempt to foster unionization remains to be seen. In OSHA's view, as stated in its FAQ, while "[s]olicitation, such as handing out union authorization cards" may interfere with an inspection, "[w]earing clothing with a union name or logo would not ordinarily interfere with the inspection."
Employers should work with counsel to develop comprehensive site-specific protocols describing the manner in which they will handle OSHA inspections, including how to manage and, if necessary, challenge the participation of any third-party employee representatives. The protocol should emphasize the manner in which employer representatives will participate in the walkaround. Importantly, since many inspections are complaint-based, employers should implement effective safety programs in which employees participate and provide avenues for employees to raise workplace safety and health concerns with robust prohibitions against retaliation.
About Duane Morris
The Duane Morris Institute will offer a complimentary webinar on Handling OSHA Inspections Under OSHA's New Walkaround Rule on April 29, 2024, at 1:00 p.m. Eastern.
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