?A forthcoming proposed rule from the Occupational Safety and Health Administration (OSHA) would allow a union representative to accompany an OSHA inspector during a walkaround at a nonunion worksite, even if the union representative is not an employee at the organization. The agency tentatively plans to issue a notice of proposed rulemaking in May.
OSHA implemented a similar rule during the Obama administration through a letter of interpretation called the Fairfax Memo, but the Trump administration rescinded it in 2017.
“Given the current administration’s very pro-union policies, it seems likely the expected proposed rule will eventually become a final rule, but it is equally likely that it will face legal challenges,” said John Ho, an attorney with Cozen O’Connor in New York City.
Two other lawyers agreed that the rule will encounter opposition.
“Employers will likely argue that such a rule would exceed OSHA’s authority to mandate that employers must allow third parties on their worksites,” said Micah Dickie, an attorney with Fisher Phillips in Atlanta.
In addition, “I think the rule would have a good chance of getting struck down by a court,” said Charlie Morgan, an attorney with Alston & Bird in Atlanta.
An existing OSHA regulation stipulates that the representative authorized by employees to accompany OSHA should be an employee of the organization. However, there’s an exception to that rule. The third-party representative can be a nonemployee when this “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
Employers Must Be Prepared
Having a game plan before an OSHA inspection happens is critical.
“Employers should carefully consider whether it would consent to a third-party representative on its worksite for a walkaround and/or whether it will deny access, which could trigger OSHA seeking a search warrant,” Ho said. “The decision will turn on specific facts, but it would be prudent to consider these ramifications ahead of time.”
Dickie concurred. “It is important to have a plan in place before OSHA shows up, so HR professionals know whom to call and the play-by-play of what to consider,” he said. “Employers can refuse to allow a union representative to accompany OSHA during a walkthrough at any time, unless OSHA has a warrant. Until OSHA issues its new proposed rule and has it go into effect, an employer can and should refuse to allow any nonemployee to accompany OSHA.”
The Fourth Amendment of the U.S. Constitution protects businesses and people against unreasonable searches and seizures by the government. “These OSHA inspections involve Fourth Amendment concerns and are consent-based 99 percent of the time, so as a threshold matter, an employer is in a position to decide whom to permit on this worksite,” Dickie said. “Employers should ensure that they are not denying OSHA access, but merely objecting to a nonemployee participating in an OSHA inspection.”
If the area being inspected contains trade secrets, employers may want to ensure that the third-party representative accompanying OSHA does not get access to that information, Dickie added.
Union Access May Pose Problems
Having a union representative present during OSHA inspections raises the question of whether the individual’s visit could advance efforts to unionize the worksite.
“Employers should always be concerned when third-party representatives are permitted access to their worksite, and for nonunionized facilities, this is even more important because of the obvious concern that it could lead to unionization efforts,” Ho said.
Morgan noted that this type of visit could create distractions as well.
“If this rule becomes a tool to put more pressure on an employer during a union campaign, I would be very concerned, mainly because it would divert everyone’s attention away from the true issue during an OSHA inspection—the safety and health of the employees,” he said. “I think this rule has the potential of saddling a compliance officer or an OSHA area office with the responsibility of dealing with a potential labor dispute and would divert them from their mission.”
However, the legal framework is different at a unionized worksite, according to Ho. “For currently unionized worksites, employers should already be working hand-in-hand with the union on safety efforts, and the proposed rule will have no practical impact on them,” he said. “If there is a collective bargaining agreement in place, the union will always have a right to participate in the walkaround.”