A hot topic at the ABA Occupational Safety and Health Law Meeting – which we are attending this week in Tuscan, Arizona – has been who can serve as an employee representative during inspections.

OSHA takes the position that non-unionized employees can select a union organizer or community activist to be the employees’ walk-around representative during OSHA inspections.  The OSH Act and OSHA regulations authorize employees to select an “employee representative” to participate in inspections, but whether an “employee representative” can be a non-employee is controversial.

Employers have been rightfully concerned that allowing this practice is an effort to promote union organization in workplaces and create tension between employers and their employees.  There is also a significant legal concern that the plain language of the OSH Act and regulations require the “employee representative” to be an employee.  In fact, yesterday an industry representative pointedly asked an OSHA attorney from the Office of the Solicitor whether the Solicitor’s Office had even reviewed the Agency’s determination that third party members of the public can participate in inspections.

Today, Jordan Barab, the Deputy Assistant Secretary of Labor faced similar comments and questions.  Mr. Barab claimed that OSHA’s practice is not about union organizing, but about worker safety.  Industry responded that there is little to no value in allowing a non-employee who has ever even seen the inside of a plant to be present for an inspection.  Mr. Barab’s response, which was met with skepticism, was that a community activist or union organizer can make employees more comfortable and assist with language issues.

Despite the valid practical and legal concerns employers have about OSHA’s practice, it is clear from Mr. Barab’s comments that OSHA will be continuing its practice of letting third parties participate in inspections.

In the face of this issue, employers may have several options if faced with a situation where it appears that a non-employee “employee representative” is being designated to pressure employees into recognizing a union at the workplace.  For example, if your workplace has requirements for non-employee visitors, such as participating in an orientation program or wearing PPE, you can impose those requirements on the activist or organizer.  Employers can also challenge the validity of the non-employees’ presence if there is concern that the non-employee would be disruptive or distracting to employees during an inspection. While these tactics and others may not prevent OSHA from seeking to have the organizer or activist participate in the inspection, they are strategies that may help employers with inspections.