Final Rule Restructuring How OSHA Conducts Inspections

On April 1, 2024, the United States Department of Labor (DOL) released a final rule that will restructure how the Occupational Safety and Health Administration (OSHA) conducts inspections. At present, employee-authorized third-party representatives are allowed to accompany OSHA compliance safety and health officers in workplace inspections according to 29 C.F.R. Section 1903.8(c).  Such a third-party representative has historically, however, been limited to an “employee” of the employer being investigated by OSHA. The DOL’s final rule will revise Section 1903.8(c) so that an employee’s third-party representative may be a non-employee of the employer (i.e., someone with no prior employment or other relationship with the employer).  According to the final rule, this unaffiliated third-party “may” possess a range of skills, knowledge, or experience that could assist an OSHA safety and health officer with his or her inspection. The only requirement for the non-employee third party representative is that there must be a showing of good cause, within the discretion of the OSHA health and safety officer, as to whether it is “reasonably necessary” for the third-party to assist in the inspection.

 

This change has serious, negative, potential consequences for employers. These potential consequences include an employer’s loss of the right to:

 

  1. Prohibit third-party trespass;

  2. Be free from unlawful searches and seizures;

  3. Maintain confidentiality of plant operations;

  4. Maintain confidentiality of trade secrets;

  5. Maintain confidentiality of proprietary practices;

  6. Exclude third-party union organizers from accessing the workplace;

  7. Exclude third-party union organizers from accessing employees within the workplace; and

  8. Exclude a third-party union representative from accessing the workplace during an organizing campaign.

 

Although the final rule is likely to be met with swift legal challenges by employers, it is set to take effect on May 31, 2024.  If you would like to read the final rule in its entirety, you can find it here.

 

For questions regarding the DOL’s final rule or any other labor and employment matter, please contact any of the attorneys at Hoffman & Hlavac. To stay updated on key labor and employment law developments that affect your workplace, be sure to subscribe to this blog and follow us on social media! 

George Hlavac