Despite pushback from contractors and industry groups, a proposed change to the Occupational Safety and Health Administration’s regulations governing employee representation during a walkthrough investigation will take effect on May 31. OSHA’s Final Rule clarifies that third-party, non-employees may accompany the OSHA Compliance Safety and Health Officer (CSHO) during the walkthrough inspection of a workplace.

What the rule change means

As background, OSHA currently allows employees to have a representative present during a workplace walkthrough inspection. In most cases, the representative is an employee, but the proposed change would enable a non-employee to act as the employee’s representative. 

OSHA’s current employee representation regulation states that an employee representative “shall be an employee(s) of the employer.” 29 CFR 1908(c). But in certain cases, it also allowed for participation of a “third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer)” if that person was “reasonably necessary.” 29 CFR 1908(c).

The new rule change will allow workers to choose any person they might designate for the task of representing them during OSHA walkthrough inspections on a job site. It states that “the representative(s) authorized by the employees may be an employee of the employer or a third party.” 89 Fed. Reg. 22601. It then limits third-party representation to instances where “good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physician inspection of the workplace.” 89 Fed. Reg. 22601. 

Put simply, the new provision clarifies “that the representative(s) authorized by employees may be an employee of the employer or a third party.” 89 Fed. Reg. 22558.  

Perhaps the most controversial aspect of the rule change is that it allows an employee to choose a non-employee of the company as their representative, including a union representative or even a community organizer. The regulation also doesn’t stipulate that the rep must have any construction experience to act as a representative.

Critics of the rule change say allowing persons unrelated to a construction site onto it creates a liability risk for the contractor and project owner.

The previous version of the rule stipulated that an employee representative should be an employee of the employer. Under the new rule, even union officials can glean valuable information on nonunion shops and potentially ramp up organizing efforts there while acting as an employee representative.

An argument with two sides

There is something to be said on each side of this argument, for and against a nonemployee rep representing a worker. 

Workers need to feel safe to tell the truth about incidents and accidents, and unsafe practices on a worksite. If the employee rep in an OSHA walkthrough must be a fellow employee, it limits the pool of potential reps. It may also invite the opportunity for employees to collude to cover the truth of a matter being investigated by OSHA.

But nonunion shop contractors have rights, too. One of their rights is not to allow any person onto a construction site being built for a third party. Nonunion contractors also have the right to keep union organizers off of their worksites.

Employers will be able to contest a rep

Despite what may seem a true rigidity in this rule change, employers might have options to contest a nonemployee representing an employee in a walkthrough—at least on a case-by-case basis.

OSHA must demonstrate that the non-employee representative is “reasonably necessary to the conduct of an effective and thorough inspection of the workplace.” If a nonemployee representative deviates from their role by encouraging unionization during the inspection or through other actions, OSHA regulations require that they be removed.

Regardless of where they are from, the employee representative can only conduct employee interviews if invited to do so by the employee being represented. According to the regulation, they should also not be involved in any document production or review; they are only allowed to be involved in the walkthrough inspection.

Trouble on the horizon?

AGC fired a shot at OSHA regarding this rule change before approval, which could signal future trouble.

AGC said in a statement that conflicts of interest could result from allowing a union representative into a nonunion workplace, including “increased liability exposure to the employer that is the subject of the inspection, and the fact that OSHA lacks the constitutional authority to make such a sweeping, controversial revision to the existing regulations. If OSHA decides to move forward with the proposed changes, AGC will explore all options to block the final rule.”