On April 5, 2013, OSHA issued an interesting opinion providing that employees at non-union workplaces may designate a union representative to accompany OSHA’s investigators during inspections.  This guidance appears inconsistent with OSHA regulations and is a significant change in OSHA’s interpretation of its regulations.

OSHA’s opinion conciStock_000001417665XSmallludes that non-union employees can select a person who is affiliated with a union or a community organization to act as their “personal representative” to act on the employee’s behalf as a walk-around representative.  The difficulty with this interpretation is that 29 C.F.R. § 1903.8 provides that a representative must be an employee of the employer.  There is an exception to this rule if the OSHA investigator believes that the presence of a third-party is necessary to conduct an effective and thorough investigation of the workplace.  These “exceptions” often times include experts like industrial hygienists and safety engineers.  There is certainly no indication that one’s membership with a union somehow aids in an effective and thorough inspection of the workplace.

             Aside from OSHA’s apparent inconsistencies with its regulations, this interpretation raises a number of other concerns.

  • How is the employee representative selected?
  • Can other employees object to the selected representative?
  • Can employers object to the employee representative?
  • Do objecting employees have the opportunity to select their own representative?
  • Does this allow for multiple employee representatives?
  • Can the employee representative collect evidence?
  • Does the employer have any protection from the release of trade secrets or other confidential information viewed by the employee representative?

OSHA’s latest interpretation letter raises more questions than it answers.  Certainly, non-union employers should be concerned about this new policy, and unions may be encouraged to use OSHA investigations as an organizing tool.