Plan What to Do When an OSHA Inspector Arrives

With the Occupational Safety and Health Administration’s (OSHA’s) “walkaround rule” soon taking effect, HR should know what to do when an OSHA inspector arrives. Unless a court blocks the rule’s enforcement, employers have to comply with it starting May 31.

Walkaround Rule and Union Organizers

The new rule empowers OSHA inspectors to let union representatives, community activists, or any other third party join them during an onsite inspection, said Heather MacDougall, an attorney with Morgan Lewis in Miami. It can be anyone whom the inspector deems as representing employees and reasonably necessary for conducting the inspection. This is true even if the third parties are not employees and even if the worksite is not unionized, MacDougall said.

Employers should expect organized labor to use the rule in new and creative ways to try to get onto previously closed jobsites, said Alana Genderson, an attorney with Morgan Lewis in Washington, D.C.

“Wearing clothing with a union name or logo would not ordinarily interfere with the inspection,” the FAQs for the walkaround rule note.

So, if the third party accompanying the inspector is a union organizer, that person can show up wearing union apparel and ask workers “clarifying questions,” said David Smith, an attorney with Constangy, Brooks, Smith & Prophete in Atlanta. The organizer’s appearance can “make a nice advertisement” for unions, he said.

A union organizer might ask clarifying questions that put employers in a bad light, such as whether there’s been an accident in a particular area, and use the information later in an organizing campaign, Smith added, so long as the questions aren’t disruptive and are related to the inspection.

OSHA regulations limit the number of representatives who can accompany the inspector to one unless more than one will aid the inspection or unless different representatives are used in different phases of the inspection, said Micah Dickie, an attorney with Fisher Phillips in Atlanta. “But OSHA regulations also make clear that inspections must be conducted to preclude unreasonable disruption,” he added.

How competing unions might be selected will be up to the OSHA inspector, noted John Ring, an attorney with Morgan Lewis in Washington, D.C., and former chairman of the National Labor Relations Board. “If this situation arises, employers should be prepared to explain to the inspector why multiple nonemployee representatives would hinder the inspection,” he said. Considerations will include: overlapping skill sets, competing organizations, space restrictions in the area to be inspected, and limited availability of personal protective equipment (PPE), Ring said.

Safety and Liability Protections

Whenever third parties accompany an OSHA inspector, there are safety concerns, said John Ho, an attorney with Cozen O’Connor in New York City. Those third parties must be required to follow all safety protocol, such as wearing hard hats and other PPE, he said.

Employers should be sure to protect themselves from “tort liability,” such as damages for the tort of negligence, because a third party like a nonemployee union organizer is not covered by workers’ compensation, Smith said. “Ask the nonemployee representative to sign a waiver of liability,” he recommended.

Confidential Information Concerns

Although OSHA provides that employers may request that limits be placed in any area containing trade secrets, such a request may trigger additional disputes over what constitutes a trade secret and whether the restriction is appropriate, MacDougall said. An OSHA inspector may not be well-situated to resolve such disputes, she added.

Employers may decide to require that third parties sign nondisclosure agreements to protect confidential information viewed during an inspection. Employers should consider identifying the areas they will not let third parties enter on the basis that the areas contain trade secrets, she said.

Property Rights

Employers should understand rights tied to the Fourth Amendment, which prohibits unreasonable searches, said Michael Rubin, an attorney with Ogletree Deakins in Phoenix and New York City.

A simple statement to the inspector during the opening conference will bring the warrant requirement to the surface, he said, such as: “We understand the Fourth Amendment applies and, as a result, we understand you need either a warrant or our consent for this inspection to proceed. We are inclined to consent, but before we do, we would like to ensure there is a mutual understanding and agreement on exactly how this inspection will proceed, including who participates.”

Employers should not “lose the opportunity to negotiate the scope of the inspection by simply, automatically and mistakenly agreeing with everything the inspector says,” Rubin said.

Procedures

Employers should develop procedures for what to do when an OSHA inspector arrives, said Ashley Meredith Strittmatter, an attorney with Baker Donelson in Knoxville, Tenn. This may include:

• Designate someone to meet the OSHA inspector and anyone they bring, as well as accompany the inspector on the walkaround. Note that a third-party representative might be requested during any portion of the inspection.
• Ensure that the conduct of the inspection is not creating an unreasonable disruption.
• Ask the inspector to tell the walkaround representative that matters unrelated to the inspection shall not be discussed with employees.

Prevent Interference with Inspection

Employers should watch for activity by the walkaround representative that does not aid the inspection, Strittmatter said.

OSHA has examples of activities that interfere with OSHA’s inspection, including:

• Preventing the inspector from interviewing employees in private.
• Failing to stay with the inspector during the walkaround, such as going into unauthorized areas.
• Taking unauthorized photographs or videos.
• Engaging in union solicitation, such as handing out union authorization cards.
• Failing to comply with the ground rules of the inspection.

Disruptive behavior might result in suspension of the inspection or even immediate denial of further accompaniment by the third-party representative, Smith said.