NGFA opposes OSHA proposal on third-party access to inspections admin November 17, 2023

NGFA opposes OSHA proposal on third-party access to inspections

In comments submitted Nov. 13 to the Occupational Safety and Health Administration (OSHA), the NGFA joined a coalition of agriculture and business groups to urge OSHA to withdraw a proposal that would expand access for third parties to participate as employee representatives in OSHA inspections.

“In several ways, the proposal significantly expands the scope of individuals who can be designated as third-party authorized representatives, creating unworkable practical challenges for employers,” noted the Employers Walkaround Representative Rulemaking Coalition led by Conn Maciel Carey LLP. They said the proposal represents “a significant change to the OSHA’s longstanding approach to physical inspections of American workplaces and raises novel and complex issues of law.”

OSHA issued the Notice of Proposed Rulemaking for a “Worker Walkaround Representative Designation” rule on Aug. 30. Among other issues, the proposed rule would open the door to union representatives at non-union workplaces if an OSHA Compliance Safety and Health Officer (CSHO) determined the third party would positively impact the inspection. However, the NPRM includes no guidance on how CHSOs should determine who qualifies as the “authorized representative” of the employees, or what to do when competing third parties claim interests in an inspection.

In its comments, the coalition noted that the proposal would violate several laws, including the OSH Act, the National Labor Relations Act, and the Fourth Amendment. 

“These changes leave room for a litany of third parties not expert in the employer’s operations and who may never even have been to the subject workplace to ‘participate’ in the inspection,” stated the comments.

Changes resulting from the proposal “would create a system in which otherwise unauthorized third parties can gain access to employers’ private workplaces and their workforces,” potentially including disgruntled former employees, workers on strike against the company, or individuals who pose security, cybersecurity and proprietary risks, the groups noted. 

In addition to increasing costs for employers, the change “will undoubtedly” result in contention between employers and OSHA.

“The Coalition urges the Agency to reconsider this ill-advised rulemaking,” the comments conclude. “It is neither necessary nor prudent and will serve only to create confusion and contention around the important issue of workplace safety.”

The NPRM includes this specific proposed new regulatory text for 29 C.F.R. § 1903.8(c):

The representative(s) authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by employees is not an employee of the employer, they may accompany the Compliance Safety and Health Officer during the inspection if, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills).

“At a minimum, the Agency must establish the existence of a problem, support it with evidence and then show that its proposed solution will address the identified problem,” the comments noted. “The proposal falls far short of this basic standard.”

According to the proposal, a CSHO would determine if any potential “third-party representatives” would be qualified to participate in the inspection, including:   
Union representatives 
Plaintiffs’ attorneys 
Attorneys and consultants “experienced in interacting with government officials,” or “with relevant cultural competencies” 
Worker advocacy organizations 
Technical experts with more expertise than OSHA has in-house 
Competitors accessing proprietary information 
Former employees