This article is taken from the March 29, 2024 NGFA Newsletter.
A rule that would expand access for third parties to participate as employee representatives in federal workplace inspections has completed review at the Office of Management and Budget (OMB), meaning the Occupational Safety and Health Administration (OSHA) could finalize the rule at any time.
Once finalized, the “Worker Walkaround Representative Designation” rule will immediately apply to federal OSHA jurisdictions, but not to State Plan States until it is formally adopted. A map distinguishing federal OSHA jurisdictions from the State Plan States is available here on OSHA’s website.
OSHA issued the Notice of Proposed Rulemaking on Aug. 30 and sent it to OMB in February this year. Among other issues, the rule would open the door to union organizers, community activists, or other third parties who do not officially represent the employees or the government to accompany OSHA on an inspection of a workplace if an OSHA Compliance Safety and Health Officer (CSHO) determined the third party would positively impact the inspection.
NGFA joined the Employers Walkaround Representative Rulemaking Coalition led by Conn Maciel Carey LLP which drafted and submitted comments in November urging OSHA to withdraw the proposal.
“In several ways, the proposal significantly expands the scope of individuals who can be designated as third-party authorized representatives, creating unworkable practical challenges for employers,” noted the coalition. The proposal represents “a significant change to the OSHA’s longstanding approach to physical inspections of American workplaces and raises novel and complex issues of law.”
In its comments, the coalition noted that the proposal would violate several laws, including the OSH Act, the National Labor Relations Act, and the Fourth Amendment.
Changes resulting from the proposal “would create a system in which otherwise unauthorized third parties can gain access to employers’ private workplaces and their workforces,” potentially including disgruntled former employees, workers on strike against the company, or individuals who pose security, cybersecurity and proprietary risks, the groups noted.
In addition to increasing costs for employers, the change “will undoubtedly” result in contention between employers and OSHA, the coalition added.
According to the proposal, a CSHO would determine if any potential “third-party representatives” would be qualified to participate in the inspection, which could potentially include union representatives; plaintiffs’ attorneys; attorneys and consultants “experienced in interacting with government officials,” or “with relevant cultural competencies;” worker advocacy organizations; technical experts with more expertise than OSHA has in-house; competitors accessing proprietary information; former employees; customers; and media.
Multiple parties are considering litigation to challenge the rule after it is published and goes into effect.