OSHA Plans to Revive the ‘Fairfax Memo’Feb 09, 2023
We thought it went away forever in 2017, but the Occupational Health and Safety Administration (OSHA) plans to revive an unpopular enforcement policy known as the Fairfax memo sometime this year. The memo, issued in 2013 by Richard E. Fairfax, Deputy Assistant Secretary of OSHA, authorized a worker advocate to take part in inspections of nonunion workplaces — even when that worker advocate is not an employee.
The original memo says that if the OSHA inspector approves, “a person affiliated with a union” or some other “community representative” can act as the employee representative during an inspection — as long as employees have authorized that person to be their representative.
What’s the problem?
Most employers with unionized workplaces understand that their employees can designate a union member to participate in an inspection. However, employers managing nonunionized workplaces understandably object when a national union office sends someone who is not an employee to participate in an inspection. These employers correctly labeled the policy as a backhanded way to unionize outside the bargaining process.
One of the federal legal challenges to the Fairfax memo, brought by the National Federation of Independent Businesses in 2017, correctly argued that the Fairfax memo had the effect of a rule without going through the normal rulemaking process — including the posting of notices and facilitating a public comment period.
On April 25, 2017, Dorothy Dougherty, Deputy Assistant Secretary of OSHA, and Thomas Galassi, Director of OSHA’s Directorate of Enforcement Programs, issued a memorandum to regional offices, notifying them of the withdrawal of its previous guidance, and removed this guidance from OSHA’s Field Operations Manual (FOM).
That was the end of it until now.
OSHA’s rulemaking intentions, as described on the current unified agenda, is to “clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer if, in the judgment of the Compliance Safety and Health Officer, such person is reasonably necessary to an effective and thorough physical inspection.”
OSHA intends to issue a notice of proposed rulemaking sometime in May. This step in the rulemaking process will include a complete explanation of the rule and open a public comment period.
Given previous controversy and litigation about this issue, we expect the new rule will face challenges.
In the meantime
If you have any questions or concerns about the OSHA inspection process — or have received a citation for any reason — don’t hesitate to call Orr & Reno for assistance.
About the Author: James Laboe