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OSHA’s new employee outreach rule has raised many questions.
The final rule went into effect on May 31, allowing employees to select a a third party representative to be present during OSHA inspections. The agency has touted the change as a way to improve inspections by increasing worker representation and making it easier for compliance officers to obtain more information about workplace safety.
“Worker involvement in the inspection process is essential to thorough and effective inspections and to making workplaces safer,” Doug Parker, assistant secretary of labor for occupational safety and health, said in a press release .
But not everyone is happy with the rule. Opponents and business groups have called it vague and say adding more people to inspections raises questions about safety, accountability and confidentiality.
A rule to match practice
Employees have always had the right to have someone accompany them on an OSHA inspection, said Curtis Chambers, a certified safety professional and president of OSHA Training Services, an Arlington, Texas-based training and consulting firm. In fact, it was a long-standing practice observed by OSHA.
However, a 2017 court case found that allowing third parties to represent employees was a “valid interpretation,” but not consistent with the language of the rule. OSHA issued the final rule this year to change and clarify the agency’s opinion and ensure that the text aligned with its previous interpretation that third-party inspections are allowed.
Even before the final rule went into effect, several groups, including builders and associated contractors, the National Association of Manufacturers and the US Chamber of Commerce filed a lawsuit at the Western District of Texas to challenge it. In particular, business groups dispute the rule that labor representatives can visit sites that do not have union workers.
“By allowing outside union agents access to the private property of non-union employers, OSHA injects itself into labor disputes and calls into question its status as a neutral enforcer of the law. ABC said in a statement about the lawsuit.
Chambers agrees that the rule “mainly favors unions trying to enter businesses that don’t have union contractors or union representation,” he said. “It’s just a reflection of the political environment.”
Legal issues
Chambers said the rule also expands the definition of the type of person who can be present at an inspection. Instead of someone with specialized knowledge, such as a security engineer, it could be someone with language skills or communication skills, which could be almost anything.
“The qualification to be an employee representative may just be to make them more comfortable,” he said.
Trent Courtney
Courtesy of Adams and Reese LLP
TThe push for the rule change may have been “mainly for the purpose of allowing a union representative to attend, but that person doesn’t have to be a union representative,” said Trent Cotney, a construction attorney for Adams and Reese in Tampa. , Florida. “The process allows an employee or employees to request a representative and that representative does not have to be affiliated with the employer.”
Often, these third-party escorts are union representatives of workers who already belong to labor groups, but the rule change makes it clear that this is not always the case.
The new OSHA rule does not say that person must go through safety training or meet the employer’s safety requirements, Cotney said. Contractors are “very hesitant to allow anyone to enter a job site that doesn’t allow for a reason for being there other than the purposes of that inspection,” Cotney said.
Companies also have concerns about intellectual property because the new rule doesn’t say a third-party representative must sign a nondisclosure agreement, but Cotney said asking a representative to sign one would be “just a reasonable request,” according to OSHA guidelines.
“A manufacturing plant or contractor that has specialized materials processes may be exposing that to someone who is the competition or has access to the competition,” he said.
Peter Dyga
Permission granted by ABC Florida East Coast
Peter Dyga, president and CEO of ABC’s East Coast Florida chapter, said he is concerned about the safety of this ruling because “anyone can be in the workplace and have no company training or site-specific training”. He also added that “the rule does not answer who is responsible if the third party, who could be any number of third parties; what if they are injured during the inspection?”
He also accused OSHA of overreach, saying that through this ruling they “don’t even think about the basic consequences.”
what happens next
Because the final rule is still new, contractors are mostly in the “wait and see” phase. Cotney said he expects the first third-party representatives under this rule to be present at workplaces in areas where union labor is more common than in open areas.
It also said a contractor can object to a third-party representative.
If they do, the decision will go back to OSHA’s area director, who will make a decision on whether or not the process can move forward. If the area director decides he can move forward, and a contractor objects again, “they can hypothetically issue a warrant or issue a subpoena or take other types of potential punitive actions,” he said.
from Cotney also keeping an eye on the lawsuits filed by the challenger, especially since a recent Supreme Court ruling ended Chevron’s deference, where courts deferred to agency interpretations of ambiguous statutes.
Chevron’s deference had given federal agencies “enormous, enormous power,” he said. The recent reversal means the judiciary is checking that power, Cotney said, which can play out in multiple ways, and could include overturning the power of an agency like OSHA to institute these kinds of rules.
