Wilt Toikka Kraft LLP

Your OSHA Rights: The Right to Appoint a Representative

The Occupational Safety and Health Administration (OSHA) has announced a finalized amendment to a regulation regarding the designation of a representative to accompany OSHA inspectors during workplace inspections. But why is this significant?

In the realm of occupational safety and hazards, OSHA holds authority over regulations and the imposition of penalties. Central to this authority are worksite inspections, where OSHA inspectors evaluate workplace conditions, scrutinize safety records, and interview employees to ensure employers comply with regulations. Amidst these inspections, who is eligible to accompany the inspector?

Traditionally, employees seek representation during OSHA worksite inspections to safeguard their rights. OSHA regulations, particularly 29 CFR 1903.8(c), stipulate that employee representatives must be employees of the employer. Nonetheless, OSHA has historically allowed third parties to act as representatives. However, the interpretation of this regulation narrowed following the 2017 court case National Federation of Independent Business v. Dougherty, which concluded that only employees of the employer could partake in these inspections.

OSHA’s Final Rule On March 29, 2024, OSHA, issued a final rule clarifying who can accompany an OSHA compliance officer during a worksite inspection. The previous regulation permitted non-employees only if their technical expertise was deemed reasonably necessary, citing examples such as an industrial hygienist or safety engineer. The revised final rule removed these examples and introduced criteria where third-party representatives may be reasonably necessary based on their “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.”

DC Civil Lawyers Present Three Points to Note:

  • The OSHA inspector must ascertain that there is justifiable cause for the presence of the non-employee during the inspection.
  • The non-employee is bound by other inspection-related regulations, allowing the inspector to deny access if the representative unreasonably disrupts the employer’s operations or interferes with the inspection.
  • This clarification does not override OSHA’s authority to conduct unannounced inspections.

DC Civil Lawyers urge that while these revisions may appear minor, their ramifications could be substantial. OSHA’s rationale for the final rule indicates an intent to allow “a wide variety of third parties” to attend workplace inspections, including those from unions or worker advocacy groups. Consequently, we may witness union representatives, lacking technical expertise, accompanying OSHA inspectors, even in non-unionized workplaces. Furthermore, the amendment broadens the scope for plaintiff-side “experts” to participate in workplace inspections.

The full impact of this development remains to be seen, yet it underscores the ongoing nationwide drive for unionization. DC Civil Lawyers stress that employers should maintain open communication with employees and ensure proactive addressing of safety concerns and other workforce issues.

This final rule will take effect on May 31, 2024. Stay informed for further updates.

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