Published
April 01, 2024
On April 1, the Occupational Safety and Health Administration (OSHA) published the final regulation allowing employees to designate a non-employee as their representative to accompany OSHA inspectors during walkaround inspections. As expected, the final regulation is almost identical to the proposed version, the only change being to make explicit the broad range of possible reasons for a third party to be the representative of employees.
Under the regulation, third-party employee representatives “may accompany the [OSHA inspector] when good cause has been shown why they are reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
OSHA disregarded the concerns raised by the Chamber and others that union representatives invited by employees into non-union workplaces would be there for reasons other than assisting OSHA inspectors. OSHA also places all of the responsibility for determining whether third-party representatives are “reasonably necessary” and “good cause has been shown” for them to participate in the inspection on the inspectors without providing any specific criteria to guide them.
OSHA inspectors will, therefore, be caught in the middle of labor and organizing matters that will distract from their core mission of identifying workplace safety issues. OSHA’s FAQ page provides more details.
Imagine you are a company in the middle of a contentious labor union organizing campaign. One day, one of the union organizers, wearing a bold t-shirt promoting the union, approaches the front gate of your workplace. He asks to come in and wander around, talk to some employees, take some pictures, and generally get an inside view of how your workplace operates. You would naturally, and with various legal reasons on your side, prohibit him from entering your workplace. You might even call security to have him removed from the premises.
Now, imagine that the same person is selected by one of your employees (remember this is a non-union workplace) to be that employee’s representative to accompany an OSHA inspector during a “walk-around” inspection. Under the OSHA regulation, you would be powerless to prevent this union organizer from coming into your workplace or controlling where they go, what they wear, or what they do during the inspection.
The OSHA regulation is even more problematic than just allowing union representatives. It sets no limits on how many employee representatives can accompany an OSHA inspector. So, an employee can claim that they want an anti-fossil fuels activist to accompany the OSHA inspector, a plaintiffs’ attorney, or any other type of person with an agenda that would not be helpful to the employer and who would otherwise be prevented from entering if they just walked up and asked to come in. In fact, if more than one union is trying to organize that workplace, representatives from the different unions could be designated by different employees to accompany the OSHA inspector.
OSHA’s previous regulation is very clear that an employee’s representative “shall be an employee of the employer,” with narrow exceptions for specific expertise such as being a safety engineer or industrial hygienist. The new regulation eliminates the requirement that the employee representative be employed by the employer and allows an employee to designate any third party, i.e., non-employee, to be their representative. The only backstop is that the OSHA inspector is to determine whether that person “is reasonably necessary to the conduct of an effective and thorough physical inspection.”
Not only is the regulation a radical change from the previous regulation, but it also tramples on the National Labor Relations Act requirements that a union representative is not permitted in a workplace that is not represented by that union. It also puts OSHA inspectors in the middle of workplace labor disputes—exactly what they are instructed to avoid in the OSHA Field Operations Manual.
The regulation is another data point in the Biden administration’s plan to assist labor unions at every opportunity. The Chamber’s comments, submitted on November 13, make clear how this regulation is inconsistent with the OSH Act, the NLRA, and sound workplace safety policy.
OSHA’s regulation will result in OSHA sanctioning trespassing—none of the third parties who will be able to come in with an OSHA inspector would be able to come in on their own.
About the authors
Marc Freedman
Marc Freedman is vice president of workplace policy at the U.S. Chamber of Commerce. He develops and advocates the Chamber’s response to OSHA matters; FLSA issues such as overtime, minimum wage, and independent contractors; paid leave issues; EEOC, and other labor and workplace issues.
