Last Friday, the federal Occupational Safety and Health Administration issued final rules changing the way the agency conducts safety and health inspections. Under the current rule, employees are allowed to have a union representative accompany the investigator if that representative is also a company employee. The new regulation allows outside union or other representatives to participate in the inspection. OSHA stated that its investigations will be aided by the perspective of such third parties.

Employers have characterized this rule as a Trojan horse, intended to allow union representatives access to private company property. They believe that a union representative or community activist will unfairly influence the inspection or use such access to gather information or promote their own interests. In the past, OSHA could use third parties with specialized technical knowledge about a particular workplace hazard. The new regulation eliminates this knowledge requirement.

Employer groups will file legal challenges to the rules on due process and other constitutional grounds. In the meantime, employers faced with third parties seeking access to their premises may want to consider requiring OSHA to obtain a warrant to begin the inspection, and using the warrant process to challenge the legality of that third party participating in the investigation.

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