Change Coming? OSHA Inspections at Non-Union Facilities.
OSHA is poised to revive a policy that would require employers to permit union officials to take part in agency inspections even if the union does not represent employees at the facility being inspected.
OSHA previously maintained such a policy between 2013 and 2017.
The policy arose out of a memo issued in response to a labor union’s inquiry. Known as the Fairfax Memo—a reference to the memo’s author—the policy was withdrawn in 2017 as the interpretation underpinning it faced legal challenges.
During the fall of 2022, OSHA issued a notice suggesting a return to the Fairfax Memo, but this time through promulgation of a regulation.
The notice stated that a rule would be published in May of 2023 and that “[t]his rulemaking will clarify the right of workers … to specify … a union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer …”
Current OSHA regulations allow employees latitude to designate one or more representatives the opportunity to accompany an OSHA inspector, with the applicable regulations stating that “[t]he representative(s) authorized by the employees shall be an employee(s) of the employer.” ((29 CFR 1903.8(c))
The current regulations permit exceptions for good cause.
Thus, employees may designate a non-employee, “such as an industrial hygienist or a safety engineer,” but only if good cause has been shown that the person is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace …”
In the context of answering two questions from a labor organization, the Fairfax Memo sought to change existing practice.
The first question asked whether workers who are not represented by a labor organization may designate a union to act as their personal representative for OSHA purposes.
Second, the labor union asked whether workers who are not represented by a labor organization may designate a person affiliated with a union to act on their behalf as a walkaround representative.
The Fairfax Memo answered both questions in the affirmative.
With respect to inspections, the Fairfax Memo justified the response with specific examples, stating, in part, that a person “who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection … because of [their] … experience and skill [in] … evaluating similar working conditions in a different plant” or to assist with language barriers.
The Fairfax Memo met an immediate legal challenge, and the memorandum withdrawing the Fairfax Memo emphasized existing regulatory language—“generally ‘[t]he representative(s) authorized by employees shall be an employee(s) of the employer,’” except where “good cause is shown and where ‘reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace …’”
As we await OSHA’s next move and a possible new rule on this topic, it remains important to be prepared to handle an OSHA inspection, regardless of the other parties involved.
OSHA inspections are typically unannounced and can move quickly.
Therefore, it is critical to have already designated the company representative(s) that will greet the inspector, verify the basis and purpose for the inspection, meet with the inspector for the opening conference, and communicate with the appropriate management and legal contacts before, during, and after the inspection.
In addition to establishing who will take part in the inspection, it is important to clearly establish the scope and purpose of the inspection from the beginning.
About the authors: Natale DiNatale is part of Robinson+Cole’s Labor, Employment, Benefits + Immigration Group and is the chair of the firm’s Labor Relations Group. Jon Schaefer is a partner in Robinson+Cole’s Environmental, Energy + Telecommunications Group.
EXPLORE BY CATEGORY
Stay Connected with CBIA News Digests
The latest news and information delivered directly to your inbox.