The Occupational Safety and Health Administration (OSHA) recently released a Letter of Interpretation (LOI) authorizing non-unionized employees to select a union organizer or community activist to act as the employee’s representative during an OSHA inspection provided the representative was selected by the employees. Although OSHA maintains this interpretation is consistent with past practices, this is actually a drastic change from what has been the norm since the OSHA Act was enacted in 1970.
The OSHA Act and OSHA standard 1903.8 — Representatives of Employers and Employees gives employees the right to have an employee representative accompany the Compliance Safety and Health Officer (CSHO) during inspections. OSHA 1903.8(a) states: “… A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the CSHO during the physical inspection of any workplace for the purpose of aiding such inspection.” (b) “… If there is no authorized representative of employees, or if the CSHO is unable to determine with reasonable certainty who is such representative, he shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.” (c) “The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the CSHO, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the CSHO during the inspection.”
During the inspection, the representatives of both the employer and employee are permitted to accompany the inspector, ask questions, talk to the inspector and identify or ask questions about potential hazards identified by the CSHO. In unionized companies, the union typically has a designated individual, such as a shop steward, accompany the CSHO, but many non-unionized companies do not have representatives designated in advance of an OSHA visit to represent employees. Designated representatives may include, for example, a senior well-known individual, safety committee member or any other employee as long as a reasonable number of employees have selected their representative.
OSHA regulations and the recent LOI acknowledge that most employee representatives will be employees of the employer being inspected; they also indicate that there may be times when the presence of an employee representative who is not employed by that employer will allow for a more effective inspection. When there is no employee-designated representative the decision to designate an outside representative, including a union or community representative, is left up to the judgment of the CSHO. But the employees must still agree to permit this individual to act as their representative.
OSHA 1903(8)(c) states: “The representative(s) authorized by employees shall be an employee(s) of the employer.” The LOI states that “there may be times when the presence of an employee representative who is not employed by that employer will allow for a more effective inspection.” However, the CSHO must be able to show good cause why accompaniment by a third party who is not an employee of the company is reasonably necessary to conduct an effective and thorough inspection.
Limiting Non-Employee Walk-Around Representatives
There are things companies can do to limit the aspect of OSHA bringing in a non-employee union or community representative to act as the employee representative. Employers should consider taking the following precautions:
The first and probably easiest thing a company can do is to have employees designate their representative(s) prior to having an inspection. In construction, this may require having employees designate their representative at each jobsite. Once this is accomplished, OSHA will have a difficult time overruling the choice of the employees. It would be a good practice to ensure that the individuals who have been selected are informed about OSHA regulations (e.g., OSHA 10-hour outreach program) and what takes place during an OSHA inspection. Some CSHOs may try to challenge the employee’s selection because the individual they selected may not be knowledgeable enough to represent employee’s interests or speak English well enough to communicate about potential safety violations.
Ask to see the CSHO’s credentials and the credentials of anyone who accompanies the CSHO. Challenge the credentials of anyone who does not have an OSHA ID card. Determine why the CSHO believes it is necessary to have a non-employee representative accompany him or her during the inspection. Also, challenge the non-employee representative’s safety and health credentials to prove that his or her involvement would be of no value and would only be disruptive and create problems. Don’t forget to check with your employees to see if they agree with the CHSO bringing in an outsider to represent their interests.
Refuse to permit the non-employee access because of the possibility that the individual could be injured during the course of inspection and he or she is not covered by workers’ compensation and his or her presence creates a potential liability for the employer. In addition, many insurance companies request that non-employees be restricted from entering work areas because the non-employee could be injured. Consider having the individual sign a release (hold harmless agreement) from liability, but some attorneys say that it would not be worth the paper it is written on.
Require the non-employee to sign an agreement that he or she will agree to wear all required person protective equipment, not take any pictures or videos, not disclose any information obtained during the inspection, share the names, addresses, phone numbers, etc. of employees interviewed during the inspection, not relinquish any proprietary information and comply with the National Labor Relations Act by not conducting unionizing activities or promoting union membership while at the jobsite or on company property. Or if the individual is a community activist, he or she must agree not to discuss economic, political or social interests.
Refuse Access to the Worksite
If OSHA continues to insist on having a non-employee representative accompany him or her during the inspection after you have asked all the questions and voiced all your concerns, there’s the option of reminding the CSHO that you know you have the right to deny OSHA entry and ask for a warrant that orders you to permit OSHA and the non-employee to enter your jobsite or facility. Sometimes it is necessary to pull out all the stops.
It’s doubtful that most reasonable CSHOs will want to go through all this trouble just to gain access to jobsites or facilities when all they have to do is ask the employer to have the employees designate an employee representative for the inspection.
While most construction companies don’t ask for search warrants when OSHA shows up, it remains to be seen how judges will react to this interpretation if confronted with a request for a warrant directing the employer to permit a non-employee to enter the worksite. Judges will refer to the letter of the law (1903.8) because interpretations do not create new or additional requirements and only attempt to explain requirements based on the opinions of individuals who work for OSHA.
Participation by non-employee union or community representatives during an OSHA inspection can lead to problems for non-union companies. Without question, this letter of interpretation will create new animosity between OSHA and employers if OSHA moves forward and CSHOs start to insist that employers permit non-employed union or community activists to act as employee representatives during inspections.
Employers should take action to put protections in place to secure and protect their interests. Prepare an OSHA Inspection Policy and educate managers and foremen so they know how to handle an OSHA inspection. Talk to your employees, explain their rights and have them select their representatives. By being prepared, your company can still have a say if OSHA shows up at the entrance to your jobsite or facility.
George Kennedy is NUCA Vice President of Safety.