What is Authorized Employee Representation?Sep 15, 2023
A proposed rule would enable third-party employee representatives — including union reps — to join OSHA inspections.
We knew it was coming. Earlier this year, the Occupational Safety and Health Administration (OSHA) announced its intentions to revive an unpopular, Obama-era enforcement policy known as the Fairfax Memo. This policy —implemented in 2013 through a memorandum by OSHA’s Deputy Assistant Secretary Richard E. Fairfax— had allowed a “worker advocate” (i.e., a “union representative”) to take part in inspections of nonunion workplaces.
Business groups immediately challenged the Fairfax memo and OSHA’s new authority to allow non–employee representatives to accompany their compliance officers in on-site inspections. It took several years of pushback from business organizations to change the policy. Eventually, in 2017 — after the National Federation of Independent Businesses (NFIB) successfully sued OSHA in federal district court — OSHA rescinded the memo and ended the practice. The NFIB claimed that the Fairfax Memo functioned as a new rule “adopted without notice or comment” and violated the Administrative Procedures Act of 1946. They also contended that 29 CFR 1903.8(c) clearly states that employee representatives must be employees (“shall be an employee(s) of the employer.”)
The court agreed, and the issue went away until late 2022 when OSHA announced their rulemaking intentions for 2023.
Come one, come all
OSHA’s Notice of Proposed Rulemaking (NPRM), published on August 29, 2023, seeks to clarify and formalize a common understanding of the people employees may authorize to represent them during an OSHA inspection. The proposed rule also gives OSHA’s compliance officers broad discretion in including a range of “outsiders” (non-employees) in an inspection if it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” OSHA explains that “reasonably necessary” means that third-party representatives must make a “positive contribution to a thorough and effective inspection.” It doesn’t get much broader than that.
Should the rule go into effect unchanged, all kinds of people could soon be permitted by employees to represent their interests and accompany an OSHA official on an inspection. Other than health and safety professionals, these individuals could include union representatives, bi-lingual language interpreters, experts on specialized equipment, and others — as long as they contribute positively to the inspection.
OSHA is seeking feedback from employers and other stakeholders regarding the new rule — particularly the regulation’s “reasonably necessary” requirement. Comments should be submitted by October 30, 2023, through the Federal e-Rulemaking Portal. Refer to Docket No. OSHA-2023-0008.
What employers can do
Given the employee-friendly, union-friendly tenor of the current administration — combined with low national unemployment numbers and positive financial growth across many industry sectors — employers should prepare themselves for increased union organizing and striking activity in the months ahead.
For any employer in a competitive job market, now is an excellent time to think about the quality of your communication with your current employees, and how you can make it better. Proactively review compensation packages. Make sure you have a functional and fair complaint resolution process in place. Get out there on the front lines and talk with your employees. What are they worried about?
Employers also have the Fourth Amendment right to refuse an on-site, walk-around inspection on any basis and require OSHA to get a warrant to conduct its inspection. Another possible action is to deny access only to the non-employee third party — if it is unclear why the third party is there — and tell any OSHA officials it’s okay for them to proceed. More than likely, OSHA will see this as “refusal of entry” and get a warrant anyway, but exercising this fundamental right can buy employers a little time if time is what they need.
Could this new rule, if enacted unchanged, force you to open up your workplace to third parties with uncertain legal and business intentions? If you have any questions or concerns — or have received a citation for any reason — don’t hesitate to contact Orr & Reno for assistance.
About the author: James F. Laboe