The Department of Labor (“DOL”) announced a notice of proposed rulemaking on August 29, 2023, concerning who employees can authorize to act as their representative during Occupational Safety and Health Administration (“OSHA”) workplace inspections.
Specifically, the DOL’s Proposed Rule would revise 29 CFR 1903.8(c) to permit non-employee representatives during OSHA inspections, provided they are “reasonably necessary to conduct an effective and thorough inspection.” This Proposed Rule thus signals OSHA’s intent to revive the interpretation of 29 CFR 1903.8(c) outlined in the Fairfax Memo, a 2013 Letter of Interpretation that purported that non-unionized workers had the ability to designate outside third parties affiliated with a union as their representatives during OSHA inspections. Upon publication, the Fairfax Memo was widely criticized by employers for sanctioning the use of OSHA inspections as a backdoor opportunity to unionize outside of the traditional bargaining process. Although OSHA rescinded the Fairfax Memo in 2017 following a successful legal challenge by the National Federation of Independent Business, OSHA nonetheless states that the Proposed Rule is intended to align the text of 29 CFR 1903.8(c) with its “longstanding interpretation of the OSH Act.”
OSHA has opened its Proposed Rule for public comments until October 30, 2023, and has specifically requested comment on the “criteria and degree of deference OSHA should give to employees’ choice of representative.” Comments can be submitted at Regulations.gov.