National Clothesline
National Clothesline
OSHA issues controversial letter
Under the Occupational Safety and Health Act, if a union represents employees, a union representative is permitted to participate in the inspection and any proceedings resulting from the issuance of citations.
In the case of nonunion employees, because there is technically no representative, there is generally no employee participation.
In fact, the only level of employee participation is employee interviews, which the employer can restrict without a warrant.
OSHA, however, has just issued a letter of interpretation that states that nonunion employees have the right to select a representative, and that that representative does not necessarily have to be an employee.
In other words, the employees could designate a union official, a stranger off the street, or another employee to participate in a walk around.
It has always been the case that in a nonunion shop, an OSHA inspector could recognize an employee member of the safety committee or an employee designated by other employees as their representative. The regulations and interpretations, however, did not necessarily tell the inspector how to decide who that person was.
Moreover, the OSHA inspector was given the discretion to determine that having an employee representative could make the inspection more difficult, and consequently leave him out.
In the same letter, OSHA also withdrew an interpretation issued 10 years earlier that a non-employee who files an OSHA complaint does not have a right to participate in the inspection resulting from the complaint.
In doing so, OSHA did not say one way or the other what an OSHA inspector is supposed to do if the complainant wants to go along.
This letter interpretation reflects what has been an extreme prounion bias in the Department of Labor since the election of President Obama. It is easy to see how this new letter of interpretation will be used as a weapon by union organizers.
The intimidation factor
During OSHA inspections, employers are usually intimidated by the presence of a government inspector, and they are frequently unaware of their rights.
As a result, they would likely allow an OSHA inspector to bring a union official along, especially if the union official convinced him that he was the representative of the employees, or he was the person whose complaint caused the visit.
This interpretation drives home the point that every employer should have a policy for dealing with OSHA inspections.
In addition, supervisors and employees need to understand how to deal with the OSHA inspector who shows up on the job. Let's go over these rights.
First, an OSHA inspector does not have a right to enter your facility without a warrant.
In virtually every case, the inspector arrives without a warrant, even if the purpose of his inspection is to investigate an employee or an anonymous complaint.
Get a warrant
If there is any reason why you do not want an OSHA inspector to enter your premises, you should send him away and tell him that he must have a warrant to inspect your facility.
Second, supervisors and employees should be instructed that if the OSHA inspector shows up, he should be instructed to wait in a public area, without a view of the shop, until the safety director or the owner arrives.
Third, you should tell supervisors that they are not to answer any questions posed by an OSHA inspector. That is your job, not the supervisors.
Talking to employees
With respect to nonsupervisory employees, they should be instructed that while it is their right to talk to the OSHA inspector during their off time, you would prefer that they did not.
Tell them that the reason you would prefer that they not talk is that OSHA takes the position that employees should be disciplined, even fired, for OSHA violations, and that OSHA is not necessarily their friend.
Fourth, even if you plan to send the OSHA inspector away, you should first ask him why he is there. If he does not answer you, tell him to get a warrant.
If he tells you that it is a result of the employee or an anonymous complaint, ask for the details of the complaint. If he does not give the details, tell him to get a warrant.
He will more than likely tell you that your establishment came up on some random list of businesses. Ask him how that process works. Then send him packing.
Limit the scope
In rare cases, if he is there for a complaint investigation, you may agree to allow him to inspect that particular condition.
He will ask, however, to conduct a wall-to-wall inspection, and you need to be firm in restricting the scope of the inspection to the complaint.
Perhaps in a future article, I will discuss how to deal with an actual inspection, whether the result of a warrant or an agreement to allow the inspection.
Even in those cases, you need to be aware of your rights, and you need to be aware of the best practices an employer should use.
Get outside help
Finally, if the OSHA inspector has a nonemployee with him and he states that the nonemployee is the employees’ representative, tell him to get a warrant.
Then call an attorney because you may have a union organizing drive behind the OSHA complaint and inspection.
Employers must be prepared to push back when the government takes steps to hurt its business.
The way that OSHA operates, it is rarely engaged in activities to help employers, or employees, for that matter. Rather, it issues fines and penalties for technical violations of its onerous standards. Do not act foolishly.

Frank Kollman is a partner in the law firm of Kollman & Saucier