Federal safety officials have just made good on one of their promises by issuing a proposed rule that would give a designated union representative the right to accompany an OSHA inspector during a facility walkaround regardless of whether the representative is your employee or the facility is a union shop. What do you need to know about this proposed rule released today, what can you do in response, and what are the seven key steps you can take to prepare?
What is the Proposed Rule?
OSHAs new proposed rule alters the current regulation by removing the explicit regulatory requirement that an employee representative be an employee of the employer being inspected. Instead, the proposed rule now states that the representative(s) authorized by employees may be an employee of the employer or a third party. The proposed rule also authorizes a third party who can be used to assist OSHA during an inspection based on their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.
As we discussed earlier this year, the proposed rule mirrors a similar rule in place during the Obama administration implemented through a 2013 letter of interpretation known as the Fairfax Memo rather than going through the formal rulemaking process OSHA is using now until it was rescinded by the Trump administration in 2017. In the Fairfax Memo, OSHA declared that workers at a worksite without a collective bargaining agreement may designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative.
OSHAs proposed rule mirrors its position in 2013 that the OSH Act authorizes participation in the walkaround portion of an OSHA inspection by a representative authorized by [the employers] employees, without any limit on whom the employees can choose for a representative. Similarly, the proposed rules reasoning relies on the OSHA Act and its longstanding regulation that allows the agencys compliance officer to decide to allow a non-employee to participate in an inspection of an employers worksite if it is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.
This proposed rule goes even further than OSHAs position in 2013, where OSHA contemplated only non-employees assisting in the inspection if they were an industrial hygienist or a safety engineer. The new proposed rule would allow employees to even designate third-party interpreters to accompany OSHA during the inspection of a workplace.
When Will the Proposed Rule Go Into Effect?
Most proposed rules go into effect no earlier than six months from when they were proposed. OSHA has opened up a comment period through October 30 for employers, employee advocates, unions, and other groups to submit public comments on the proposed rule. Then, the agency will finalize and publish its final rule in the Federal Register with an effective date noted in that final rule.
Even if the proposed rule becomes a final rule, remember that business groups challenged the Fairfax Memo and OSHAs use of non-employee representatives till the practice was abandoned by OSHA in 2017. This time around, the final rule will need to be formally challenged in the court system to have the rules enforcement stayed, much like OSHAs vaccine ETS and the Federal Contractor Vaccine Mandate.
Remember also that if you do business in a state wherea state agency rather than federal OSHAenforces the OSH Act (such asCalifornia,Kentucky, North Carolina, or elsewhere), those state agencies employee representative regulations and timelines to adopt the eventual federal rule may differ.
Do Employers Have a Say in OSHAs Rulemaking Process?
Yes. Starting August 30, employers may submit comments on the proposed rule. Comments, along with any submissions and attachments, should be submitted electronically atthe Federal e-Rulemaking Portal. Follow the instructions online for making electronic submissions. After accessing all documents and comments in the docket (Docket No. OSHA-2023-0008), check the proposed rule box in the column headed Document Type, find the document posted on the date of publication of this document, and click the Comment Now link.
What Can Employers Do? Heres Your 7-Step Action Plan
As we noted in 2013 when the Fairfax Memo was issued, there is an obvious concern that such a policy will encourage unions to get involved in OSHA inspections and complaints in non-organized facilities as a means of gaining access to the facility when they normally would not have such access. This change in policy could be a big boost to union organizing and has been widely applauded by most, if not all, labor unions.
Its now 10 years later, and as we recently discussed here, strike activity and union organizing is expected to continue to increase significantly. Thus, its important for employers to take action in light of this proposed rule. Heres a seven-step action plan:
1. Know Your Rights
Keep in mind that employers have Fourth Amendment and state property rights, and nothing in the proposed new rule changes that. Even under the new rule, OSHA can only inspect worksites with the employers consent unless the agency has a warrant. Therefore, employers are still entitled to control how OSHA accesses company property and the areas covered during an inspection unless the agency has a warrant. Work with your counsel if you have questions and to understand the ramifications that might result if you push the agency representatives to demand a warrant.
2. Revisit Your Procedures For When OSHA Shows Up to Conduct an Inspection
Review these comprehensive OSHA Inspection FAQs, then put together a plan for when OSHA arrives at your worksite. For example, designate one supervisory employee to be the contact person when OSHA arrives and ensure OSHAs inspector stays within the inspections scope. A designated manager or coordinator should stay with each OSHA compliance officer at all times during the inspection, except during interviews with non-supervisory employees who do not request a managers presence. It is a strategy question whether to use the safety manager in this role. Be sure you are ready to take side by side photos, sampling, and tests when OSHA requests to do so.
3. Know How to Survive an OSHA Inspection
Review our Focus 4 Threshold Tips for Surviving an OSHA Inspection that every employer should know: (1) dont permit any manager or supervisor interviews by OSHA on the day the agency arrives; (2) dont give federal OSHA any documents other than your OSHA 300 logs, 300A summaries, 301 forms, and relevant safety data sheets (SDS) on the first day of the inspection; (3) take the OSHA inspector straight to and straight from the area of the referral, complaint, or even the pertinent area of an emphasis program inspection; and (4) ensure your employees are refraining from any high hazardous activities occurring while OSHA is present.
4. Protect Your Trade Secrets
Even if your procedures during an OSHA inspection are not fully developed, a top priority is to ensure that site management knows what areas of the worksite contain trade secrets or other confidential commercial information that you would not want a third-party to see or access. For those areas, you should insist that no third party access these areas, and OSHAs photos should be marked trade secret.
5. Establish or Recommit to a Safety Committee
If your worksite does not have a safety committee already in place, consider establishing one ASAP. That committee arguably would hold the representative role in walkaround inspections, and employees may designate a safety committee member as their representative instead of a union member. Note that when setting up safety committees, you must be aware of the National Labor Relations Act and unfair labor practice concerns if the safety committee is not properly implemented. So, youll want to seek legal counsel before implementation.
6. Decide if the penalties for refusal warrant a denial of a Third-Party Representatives Access to your worksite
After you have followed the steps above, you may decide as a matter of policy to refuse requests for third parties to accompany OSHA. One option is to advise the OSHA compliance officer that they may conduct their inspection, but you are choosing to deny entry to any third party. You have the Fourth Amendment right to refuse a walkaround inspection on any basis and require OSHA to get a warrant to conduct its inspection. But you should note that OSHA may treat this refusal to allow a third-party on-site as a refusal of entry and seek a warrant. Seek legal counsel to decide if refusing entry is the right option for you.
7. Prepare for an Increase in Labor Actions and Union Organizing
See our prior Insight for a thorough discussion of what is happening across the country on the labor front and things you can do to immediately and efficiently respond to union organizing and work stoppages. For the most up to date information, make sure you review our Labor Relations Insights, since there has been much activity from the NLRB in the recent days and weeks. On the front end, your action plan may include maintaining effective lines of communication with employees, consistently applying work-related policies and procedures, having an effective complaint resolution process in place, and proactively reviewing compensation packages to ensure you remain competitive.
Conclusion
You should understand your rights if OSHA arrives at your worksite and have a plan before you are asked to allow a non-employee to accompany an inspector at your worksite. If you have any questions, contact the authors of this Insight, your Fisher Phillips attorney, or any member of our Workplace Safety Practice Group or Labor Relations Practice Group. Make sure you are subscribed toFisher Phillips Insight Systemto get the most up-to-date information on OSHA issues.
Read this article:
OSHA's Proposed Rule Would Allow Union Walkthroughs of All ... - Fisher Phillips
- Why Congress Must Reform FISA Section 702and How It Can - brennancenter.org - April 12th, 2024 [April 12th, 2024]
- CIA wants more power to spy on Americans - Washington Times - April 12th, 2024 [April 12th, 2024]
- Keyboard search warrants and the Fourth Amendment | Brookings - Brookings Institution - February 22nd, 2024 [February 22nd, 2024]
- Just Published: "Terms of Service and Fourth Amendment Rights" - Reason - February 22nd, 2024 [February 22nd, 2024]
- Can Texas police set up DWI checkpoints in Dallas-Fort Worth? Here's what to know - Yahoo News Canada - February 16th, 2024 [February 16th, 2024]
- The FBI's Lawless Raid on U.S. Private Vaults Shows Why the Founders Created the Fourth Amendment | Jon Miltimore - Foundation for Economic Education - February 16th, 2024 [February 16th, 2024]
- HCSO to release body cam footage to plaintiff alleging Fourth Amendment violation - Smoky Mountain News - December 19th, 2023 [December 19th, 2023]
- Section 702 surveillance doesn't belong in the NDAA - Defense One - December 16th, 2023 [December 16th, 2023]
- Valkyrie's Fourth Amendment for the Launch of a Bitcoin ETF - Crypto Times - December 16th, 2023 [December 16th, 2023]
- Digital justice: Supreme Court increasingly confronts law and the internet - Washington Times - December 14th, 2023 [December 14th, 2023]
- Trump and Section 3 of the Fourteenth Amendment: An Exploration ... - JURIST - October 13th, 2023 [October 13th, 2023]
- Expert Q&A with David Aaron on FISA Section 702 Reauthorization ... - Just Security - October 13th, 2023 [October 13th, 2023]
- A Constitution the Government Evades - Tenth Amendment Center - October 13th, 2023 [October 13th, 2023]
- First and Fourth Amendment Claims Over Arrest at Protest of Police ... - Reason - September 25th, 2023 [September 25th, 2023]
- Law enforcement violation of the fourth amendment - Daily Kos - September 25th, 2023 [September 25th, 2023]
- D.C. Appeals Court weighs whether phone seizures from 2020 ... - Washington Times - September 25th, 2023 [September 25th, 2023]
- Opinion: Why you shouldn't turn on your phone in church Palo Alto ... - The Daily Post - September 25th, 2023 [September 25th, 2023]
- Court attorneys group hosts CLE seminar with esteemed Justice ... - Brooklyn Daily Eagle - September 25th, 2023 [September 25th, 2023]
- Former Dona Ana County Deputy Sheriff Charged with Federal Civil ... - Department of Justice - September 25th, 2023 [September 25th, 2023]
- Editorial: Renters rights ruling | Opinion - nwestiowa.com - September 25th, 2023 [September 25th, 2023]
- U.S. Attorney's Statement Regarding Proposed Changes to Crime ... - Department of Justice - September 25th, 2023 [September 25th, 2023]
- New Jersey provides a road map for fighting racially biased traffic ... - Slate - September 25th, 2023 [September 25th, 2023]
- Animal rights advocates sue after facing ongoing censorship and ... - Foundation for Individual Rights in Education - September 25th, 2023 [September 25th, 2023]
- Gerald Jako Pleads Guilty to Two Counts of Murder in Ohio County - Wheeling Intelligencer - September 25th, 2023 [September 25th, 2023]
- Supreme Court of Appeals Visits Campus The Parthenon - MU The Parthenon - September 25th, 2023 [September 25th, 2023]
- Securities and Exchange Board of India (Listing Obligations and ... - Tax Management India. Com - September 25th, 2023 [September 25th, 2023]
- Legal Strategies For A Strong Defense Against Bribery Accusations - American Judicature Society - September 25th, 2023 [September 25th, 2023]
- Police get new images of area break-in suspect - Southwest Virginia Today - September 15th, 2023 [September 15th, 2023]
- Napolitano: Is the CIA in your underwear? | News, Sports, Jobs - Standard-Examiner - September 15th, 2023 [September 15th, 2023]
- Bulletin: Maryland Juvenile Services Head Says Violence Among ... - The Trace - September 15th, 2023 [September 15th, 2023]
- Tased horseman's excessive force claims clear bar Rhode Island ... - Rhode Island Lawyers Weekly - September 15th, 2023 [September 15th, 2023]
- The absurdity of fact-checkers | Columnists | leader-call.com - leader-call.com - September 15th, 2023 [September 15th, 2023]
- Facial Recognition Technology and False Arrests: Should Black ... - Capital B - September 15th, 2023 [September 15th, 2023]
- Letter to the editor - Southeast Iowa Union - September 15th, 2023 [September 15th, 2023]
- Petition hopes to stop US government agencies from using ... - Cointelegraph - September 15th, 2023 [September 15th, 2023]
- Passing on the legacy of 9/11 to the next generation The ... - The Duquesne Duke - September 15th, 2023 [September 15th, 2023]
- Congress Should Reauthorize a Key Intelligence Tool - Foreign Policy Research Institute - September 5th, 2023 [September 5th, 2023]
- Kansas City police made arrests based on rescinded warrants ... - Kansas Reflector - September 5th, 2023 [September 5th, 2023]
- Tased horsemans excessive force claims clear bar - Virginia Lawyers Weekly - September 5th, 2023 [September 5th, 2023]
- Ball is in AL's court - newagebd.net - September 5th, 2023 [September 5th, 2023]
- Lawsuit against police chief just the latest shoe to drop in Marion ... - Kansas Reflector - September 5th, 2023 [September 5th, 2023]
- In the wake of Idalia, residents of one Florida town are turning to ... - Poynter - September 5th, 2023 [September 5th, 2023]
- NYPD using drones to monitor NYC backyard Labor Day parties, spurring privacy concerns - NBC New York - September 5th, 2023 [September 5th, 2023]
- City of Grand Rapids dismissed, lawsuit against Christopher Schurr ... - FOX 17 West Michigan News - September 5th, 2023 [September 5th, 2023]
- Letters From Readers, Aug. 31, 2023 | Opinion | avpress.com - Antelope Valley Press - September 5th, 2023 [September 5th, 2023]
- Where are the Noah's Park animals? - The Pike County Courier - September 5th, 2023 [September 5th, 2023]
- His hands were up: Attorney for football game shooting victim says civil rights violated - Yahoo News - September 5th, 2023 [September 5th, 2023]
- NYC voters explain why theyre voting for RFK Jr. over Biden: Going ... - 1330 WFIN - September 5th, 2023 [September 5th, 2023]
- Houston Food Not Bombs in Court over Feeding the Unhoused - The Texas Observer - September 5th, 2023 [September 5th, 2023]
- Search and seizure Equal protection Discriminatory policing - Massachusetts Lawyers Weekly - May 18th, 2023 [May 18th, 2023]
- The Timing of Computer Search Warrants When It Takes the ... - Reason - May 18th, 2023 [May 18th, 2023]
- Councilmembers Inquired About Pretext Stops By Police One Year ... - Pasadena Now - May 18th, 2023 [May 18th, 2023]
- BARINGS BDC, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet... - May 18th, 2023 [May 18th, 2023]
- Alabama appeals court reverses murder conviction of Ala. officer ... - Police News - May 18th, 2023 [May 18th, 2023]
- Oakland narrows town manager search to five | West Orange Times ... - West Orange Times & SouthWest Orange Observer - May 18th, 2023 [May 18th, 2023]
- The Durham Report Is Right About the Need for More FBI Oversight - Reason - May 18th, 2023 [May 18th, 2023]
- Collective knowledge doctrine applies to a traffic stop - Police News - May 18th, 2023 [May 18th, 2023]
- Interpretation: The Fourth Amendment | Constitution Center - March 31st, 2023 [March 31st, 2023]
- Public Schools :: Fourth Amendment -- Search and Seizure :: US ... - January 2nd, 2023 [January 2nd, 2023]
- BSE : Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) (Fourth Amendment) Regulations, 2022 - Marketscreener.com - November 27th, 2022 [November 27th, 2022]
- Trump legal counsel vows 'Fourth Amendment based' challenge to Mar-a ... - October 21st, 2022 [October 21st, 2022]
- Get to Know the EFA: Digital Fourth - EFF - October 13th, 2022 [October 13th, 2022]
- Arguments heard in body in trunk case | News, Sports, Jobs - Minot Daily News - October 13th, 2022 [October 13th, 2022]
- Ormond Beach Planning Board to meet Thursday - Ormond Beach Observer - October 13th, 2022 [October 13th, 2022]
- Limiting the Power of Police in Schools - The Regulatory Review - October 13th, 2022 [October 13th, 2022]
- Letter to the Editor: What Republicans Believe - Door County Pulse - October 13th, 2022 [October 13th, 2022]
- Trump wants other presidents investigated - KRLD - October 13th, 2022 [October 13th, 2022]
- Trump Rally Speech Shows He's 'Guilty and Scared': Former Prosecutor - Newsweek - October 13th, 2022 [October 13th, 2022]
- Court Strips Immunity From Cop Who Shot A Dog Within Seconds Of Arriving On The Scene Of A Non-Crime - Techdirt - October 6th, 2022 [October 6th, 2022]
- Claiming to have 4.3 trillion readers, the Onion supports parodist and its writers' paychecks in SCOTUS brief - ABA Journal - October 6th, 2022 [October 6th, 2022]
- INHIBRX, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet... - October 6th, 2022 [October 6th, 2022]
- PennLive goes to court for records related to U.S. Rep. Scott Perrys cell phone - PennLive - October 6th, 2022 [October 6th, 2022]
- Rusty Hardin & Associates Strengthens Litigation Team with Addition of Attorney Aisha Dennis - PR Newswire - October 6th, 2022 [October 6th, 2022]
- Vancouver City Council asked to OK $725000 deal with family of man killed by police - The Columbian - October 6th, 2022 [October 6th, 2022]
- Govt plans to auction 22 mineral blocks in 3 states within next two months - Business Standard - October 6th, 2022 [October 6th, 2022]
- Fort Worth officers sued after being accused of violating rights - WFAA.com - September 27th, 2022 [September 27th, 2022]
- LSU professors, students weigh in on constitutionality of room scans for online exams - The Reveille, LSU's student newspaper - September 27th, 2022 [September 27th, 2022]
- Solution for ideological division: Revising the Constitution? - The Christian Science Monitor - September 27th, 2022 [September 27th, 2022]
- Lawsuit says teen was thrown in solitary confinement and abused inside Maine's youth prisons - observer-me.com - September 27th, 2022 [September 27th, 2022]
- Lawsuit claims deputies used excessive force | Nvdaily | nvdaily.com - Northern Virginia Daily - September 27th, 2022 [September 27th, 2022]