Court Allows Case Challenging OSHA’s Interpretation of Non-Employee “Walk Around” Rights To Continue

In response to the challenge by the National Federation of Independent Business (“NFIB”) of OSHA’s guidance for the right of non-employee third parties to participate in OSHA workplace safety investigations at non-union workplaces, the U.S. District Court for the Northern District of Texas concluded that the NFIB has standing to bring its claims and that the NFIB’s primary claims could go forward.  OSHA argued that the court lacks subject-matter jurisdiction because standing was lacking and the lawsuit was not ripe for judicial review.

Employee representatives have the right to participate in OSHA workplace safety investigations and even though these representatives typically also have to be employees, OSHA has made reasonable allowance for third-party specialists such as industrial hygienists or safety engineers to accompany the compliance officer when “reasonably necessary.”  In 2013, however, Deputy-Assistant Labor Secretary Richard Fairfax issued an interpretative memorandum (“Fairfax Memo”) that indicates OSHA’s view is that representatives are “reasonably necessary” when they “will make a positive contribution to a thorough and effective inspection.”

The NFIB argues that the Fairfax Memo contravenes the Administrative Procedures Act’s rulemaking procedures.  The NFIB contends that broadening the ability for non-employee representatives to participate in walk around inspections simply facilitates union access to proselytize employees of open-shop businesses.  The court concluded that the NFIB stated a claim upon which relief could be granted, and in doing so suggested that the NFIB’s claim has merit given the court’s statement that the Fairfax Memo “flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee.”

The court did dismiss NFIB’s second claim that the Fairfax Memo exceeded OSHA’s authority.  The court concluded, “unlike 29 C.F.R. § 1903.8(c), which explicitly provides that ‘[t]he representative(s) authorized by employees shall be an employee(s) of the employer,” id. (emphasis added), and permits a non-employee third party to accompany the Compliance Safety and Health Officer during a physical inspection of the workplace, the Act merely provides that the employee’s representative must be authorized by the employee, not that the representative must also be an employee of the employer.'”

The case is No. 3:16-cv-2568 and is pending in the U.S. District Court for the Northern District of Texas.

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