By Eric Conn, Mark Trapp, and Darius Rohani-Shukla
Back in Q1 of 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule, and we have been tracking the rulemaking on the OSHA Defense Report blog since that time. Specifically, the Worker Walkaround Representative Designation Process rulemaking proposes to amend the existing regulation at 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of the existing regulation:
- Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer being inspected, to now allow non-employee third parties to act as representatives; and
- Expanding the types of third parties permitted to represent employees during OSHA inspections. The existing regulation allows a non-employee “such as an industrial hygienist or a safety engineer” to accompany an OSHA compliance officer during an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The specific reference in the regulation to these technical credential has meant that only representatives with relevant technical expertise, credentials, or unique language skills have been permitted to accompany OSHA. The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
- The proposed rule may also expand the role these third party representatives can play during the inspection. The OSH Act and the existing regulation speak in terms of the employee representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA, etc.
Conn Maciel Carey’s national OSHA and Labor & Employment Practice Groups formed the Employers Walkaround Representative Rulemaking Coalition, composed of a broad and diverse group of employers and trade associations representing many industries, including retail, manufacturing, petroleum refining, construction, food manufacturing and distribution, agricultural, and more, with millions of employees across thousands of workplaces in every state in the US. On behalf of that rulemaking coalition, we recently submitted a comprehensive set of written comments to OSHA’s rulemaking docket. In this post, we provide you with a summary of our comments that detailed:
- The concerning ways the proposed rule would impact employers;
- How the proposed rule conflicts with the OSH Act, the National Labor Relations Act, and the US Constitution; and
- How the rulemaking process has violated the Administrative Procedure Act and Executive Order 12866
The written comments submitted on behalf of the Employers Walkaround Representative Rulemaking Coalition, available here (https://www.regulations.gov/comment/OSHA-2023-0008-1976), present our concerns that the Proposal would open a flood gate to a multitude of workplace disruptions. Specifically, we explained how: Continue reading
Safety and health audits and accident or near-miss investigations are invaluable tools to identify hazards at a workplace and improve safety, but what happens when a government regulator or plaintiffs’ attorney demands copies of the reports and/or recommendations from the audit or investigation? When not done carefully or under attorney-client privilege, audit and investigation reports can serve as admissions and/or a roadmap for OSHA and MSHA investigators or plaintiffs’ attorneys regarding areas of non-compliance. This in turn can create a disincentive for employers to audit their facilities at all or conduct thorough investigations.
Ms. Shaked, a seasoned employment litigator and Cal/OSHA practitioner based in San Francisco, CA, represents employers on a wide range of employment matters, including Cal/OSHA investigations and appeals of Cal/OSHA citations, claims of discrimination and harassment, wrongful termination, wage and hour violations, and whistleblower actions. She also conducts workplace harassment prevention training, and counsels employers on workplace safety compliance, the development of employee handbooks, hiring and termination decisions, leaves of absence and accommodations, and wage and hour compliance.
Having shared a series of predictions during our January webinar regarding OSHA’s expected enforcement and rulemaking priorities in Year 3 of the Biden Administration, we took stock of what has happened at DOL and OSHA during the first 6 months of 2023, discussed surprise developments, and looked ahead at the remainder of 2023 and beyond. We took a close look at enforcement trends, including new emphasis programs, and checked in on various rulemakings likely to impact the regulated community. At the same time, we evaluated what has been happening with OSHA’s budget and staffing trends. Finally, we looked ahead to what employers can expect from OSHA over the balance of this presidential term.
