The Occupational Safety and Health Administration (“OSHA”) released a new interpretation letter on April 5, 2013, clarifying that non-union employees may select a non-employee who is “affiliated with a union” or with a “community organization” to act as their walk-around representative during OSHA inspections of their employer’s worksite.  In reaching this conclusion, OSHA concluded that language in Section 8(e), 29 U.S.C. § 657(e), of the Occupational Safety and Health Act (“OSH Act”) authorizes participation in the walk-around portion of an OSHA inspection by a person affiliated with a union without a collective bargaining agreement or with a community representative so long as the individual has been authorized by the employees to serve as their representative

However, OSHA recognized that pursuant to 29 C.F.R. § 1903.8, the OSHA compliance officer may exercise his or her discretion in who can participate in workplace inspections in order to manage the inspection effectively.  While OSHA recognized that its regulations acknowledge that most employee representatives will be employees of the employer, it concluded that there may be times when the presence of an employee representative who is not employed by the employer will be allowed to participate in a workplace inspection.  Specifically, the regulations allow an OSHA compliance officer, for “good cause,” to be accompanied by a third-party who is not an employee, such as “an industrial hygienist or a safety engineer” when, in the judgment of the OSHA compliance officer, such a representative is “reasonably necessary to the conduct of an effective and thorough physical inspection.”  29 C.F.R. § 1903.8(c).  In OSHA’s view, representatives are “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection.  OSHA noted that a non-employee representative may make a positive contribution to an inspection if, for example, he or she has experience and skill in evaluating similar working condition, or when he or she is fluent in the language of non-English speaking workers and would facilitate useful interactions between the compliance officer and the workers.

Citing confusion, OSHA withdrew an earlier 2003 interpretation letter that rejected the right of a non-employee who files an OSHA complaint to participate in the resulting OSHA inspection.  OSHA noted that the 2003 interpretation letter was distinguishable because it did not address the right of workers to designate a representative of their choice.